An Umpire Strikes Back:  Yesterday's Above the Law "Quote of the Day," featured Chief Justice Roberts, and his remarks revisiting the exchange between President Obama and Justice Alito during the State of the Union address.   According to an Los Angeles Times article by David Savage, Chief Justice Roberts told University of Alabama law students that he found it "very troubling" to be surrounded by loudly cheering critics at President Obama's State of the Union address.  During the program's Q&A, the Chief Justice was asked about the incident, he stated that the criticism didn't bother him, "[a]nybody can criticize the Supreme Court. . . . I have no problem with that."  He objected to the criticism in such a public setting.  The Chief Justice also commented on the politics surrounding the State of the Union, saying "[t]o the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we are there."  At Volokh Conspiracy, Eugene Volokh comments that if the Justices don't want to attend, "the Congress Provision of the State of the Union Clause should serve as an adequate excuse."  At Crossroads, Jan Crawford comments on White House Press Secretary Robert Gibbs' response to the Chief Justices remarks.  She writes, "[f]or the life of me, I just don't get why the White House continues to try to pick a fight with the Supreme Court."

Another Hearing on Texas's Death Penalty:  Doug Berman posts on Sentencing Law and Policy that Texas District Court Judge Fine is "reconsidering [his] declaration that state's death penalty is unconstitutional."  An AP piece by Juan A. Lozano reported that Judge Fine took back his controversial ruling yesterday, and has scheduled a hearing for next month to hear evidence on the issue.  Judge Fine has stated that he wants more information before making a final decision about whether the state's death penalty statute allows for the possible execution of an innocent person.  He has asked Harris County defense attorneys and prosecutors to submit motions on the due process issue by April 12.  An evidentiary hearing is scheduled for April 27, when testimony on whether innocent people have been executed in Texas is set to be presented.  At Homicide Survivors, Dudley Sharp provides his thoughts on Judge Fine's decision.

More on Criticizing Lawyers Who Represent Detainees:  At Volokh Conspiracy, Orin Kerr responds to Andrew McCarthy's comments on pro bono lawyers for Guantanamo detainees.  Kerr does not agree with McCarthy's assertion that lawyers "assist[ed] the enemy . . . against the American people during wartime."  His post explains why.  Kerr's post addresses McCarthy's claims that "only criminal defendants" have a right to counsel, and discusses McCarthy's comments on the Boston Massacre.  At Wall Street Journal's Law Blog, Ashby Jones rounds up coverage on the fallout from criticisms like McCarthy's.  He focuses on editorials and articles written about the Keep America Safe video released last week.

"Mistaken Defenses to Goodwin Liu":  On NRO's Bench Memos, Ed Whalen is "pleased to report" criticisms of his blog posts on the nomination of Goodwin Liu are "ill-founded."  

Kent's piece, "Shoddy and Dangerous," introduces us to a controversy swirling around two enormously important questions:  Who should serve in the Department of Justice, and to what extent can lawyers properly be held to account for positions they took in a representative capacity in their prior, private practice.

These questions were first raised by the organizaion Keep America Safe, which asked the Justice Department to identify lawyers it has employed who previously represented persons accused of supporting al Qaeda terrorism.  Initially, it is my understanding, the Department refused, but since has provided seven names.  Keep America Safe now designates these as "the al Qaeda Seven."  For the reasons that follow, I think that designation is unfair on the present record  --  but that doesn't mean raising the issue was unfair.

The Supreme Judicial Court of Massachusetts upheld the state's gun locking requirement today in Commonwealth v. Runyan, SJC-10480, distinguishing D.C. v. Heller on two grounds.

First, the Massachusetts court holds that the Second Amendment does not apply to the states. That issue is presently before the Supreme Court in McDonald v. Chicago.

Second, the court distinguishes the Massachusetts law from the more restrictive D.C. law.

The latter holding would make a simple "vacate and remand" inappropriate in the event the Supreme Court decides in favor of incorporation in McDonald.

Denise LaVoie has this story for AP.

Judson Berger reports on FOXNews.com,

The Senate Judiciary Committee has postponed the hearing for a controversial Court of Appeals nominee after the panel received a letter from a home-state prosecutor blasting the candidate as a judicial loose cannon and after Republicans raised concerns about bias in favor of sex offenders.

U.S. District Court Judge Robert Chatigny gained notoriety in 2005 for his role in trying to fight the execution of convicted serial killer and rapist Michael Ross, also known as The Roadside Strangler, whom Chatigny had described as a victim of his own "sexual sadism."

When it comes to the goals of representation, the rules are quite clear: the client is in charge. See, e.g., ABA Model Rule of Professional Conduct 1.2. Michael Ross was a "volunteer" who decided to waive his appeals and receive his punishment. His lawyer's duty was to achieve the client's goal. Whenever someone "volunteers," the anti side generally runs in and claims he must be crazy, using a variation of the original Catch-22. But in fact waiving appeals can be a rational choice. It was in Ross's case, and the lawyer did the right thing. Judge Chatigny nonetheless threatened the lawyer with loss of his license in an appalling display of judicial intemperance.  From the story:

"I've never seen conduct like this," said a Republican source. "I'm shocked that the White House vetted this guy ... and still put him up for a judgeship."

Also appalling is Judge Chatigny's assertion that sadism is "clearly mitigating" in a capital case. Not everything that has a code in the DSM is mitigating. Antisocial personality disorder is a code for behavior that is aggravating. Describing a sadistic rapist and murderer as a "victim" indicates a seriously skewed view of criminality. Sadism is defined by urges, not by an inability to resist them. A person who has an urge to do things the rest of us would not want to do is nonetheless fully responsible for his voluntary choice to act on them.

"The American Tradition of Zealous Representation of Unpopular Clients":  John Schwartz of The New Times reports on the criticism certain Justice Department lawyers have faced over their loyalty.  The lawyers once represented detained terrorist suspects, and an  advocacy organization in Washington has used this to question the lawyers' patriotism.  Attacks on these lawyers have drawn commentary from conservative legal scholars who believe that questioning the lawyers' loyalty violates the American legal principle that even unpopular defendants deserve a lawyer.  Benjamin Wittes, a senior fellow at the Brookings Institution, issued a joint letter signed by former Republican administration officials and other conservative figures, criticizing attacks, claiming they were "unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."  Richard A Epstein, a law professor, finds it "appalling" that people equate working on detainee cases with a lack of patriotism.  David M. McIntosh, a former member of Congress and a founder of the Federalist Society, thinks sometimes it might be legitimate to examine the agenda of a lawyer.  "Was the person acting merely as an attorney doing their best to represent a client's case," he asked, "or did they seek out the opportunity to represent them or write an amicus brief because they have a political or personal agenda that made them more interested in participating in those cases?"  If the commitment to the case is ideological, he said, it is reasonable to ask, "Is that the best attorney for the Justice Department?"  Kent also linked to Michael Mukasey's Wall Street Journal article on DoJ criticism today.

Former AG Mukasey is getting pretty close to being a regular columnist at the WSJ. Maybe he should be. In today's piece, he notes parallels between the attacks on John Yoo and Jay Bybee and the attacks on current DoJ lawyers who represented Guantanamo detainees. "This is all of a piece, and what it is a piece of is something both shoddy and dangerous."

A third jury has decided that serial killer Rodney Alcala should be sentenced to death for five murders, including that of a 12-year-old girl. Gillian Flaccus has this story for AP. The previous judgment was overturned by the Ninth Circuit. The story says the jury "recommended" death, but in California the jury returns a verdict, not a recommendation.

Jay Reeves reports for AP:

U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama's State of the Union address was "very troubling" and the annual speech has "degenerated to a political pep rally."

While looking for something else, I came across a transcript of Professor John McAdams' testimony to the Senate Judiciary Committee, Senate Hearing 109-540, Feb. 1, 2006. I've copied it in full after the jump. Some of the numbers are a bit out of date, but the main points remain valid.

Constitutional Right to Informational Privacy: Today's News Scan linked to Bob Egelko's report on the Supreme Court's grant of certiorari in NASA v. Nelson. Yesterday, Eugene Volokh posted his thoughts on the case, comparing the background checks conducted by NASA to criminal investigations by police. Volokh explains that in NASA the Ninth Circuit concluded it was unconstitutional for the government to ask people who knew NASA employees broad questions. Questioning "references, employers, and landlords" presumptively violated a constitutional right to privacy discussed by the Supreme Court in Whalen v. Roe. Volokh believes the ruling's implications are "stunningly broad." He writes that the Ninth Circuit's suggestion, that the right to privacy is violated when an officer asks broad questions, will limit an officer's ability to ask people broad questions about what they know of a potential suspect.

Debunking The Belief That "We Execute Innocent People": At Homicide Survivors Dudley Sharp posts on Texas District Court Judge Fine's decision to clarify his ruling regarding the death penalty in Texas. Sharp finds Judge Fine's clarification that his ruling was " . . . limited only to the due process claim that 37071 has resulted in the execution of innocent people . . . ," curious when "(1) the probability of such an event occurring is now lower than at any other time in history, (2) the judge cannot point to a case whereby an innocent has been executed in the modern US death penalty era, post Gregg v Georgia, and (3) the judge can cite no precedent wherein perfection is required in the implementation of due process." Last Friday's Blog Scan reported on the ruling, and Kent's comments are available here.

Abandoning the Exclusionary Rule: At CrimProf Blog, Kevin Cole links to Todd E. Pettys' SSRN article, Instrumentalizing Jurors: An Argument Against the Fourth Amendment Exclusionary Rule. Pettys' argument is that allowing the exclusionary rule in cases involving juries infringes upon jurors' deliberative autonomy by depriving them of available evidence that rationally bears upon their verdict and by instrumentalizing them in service to the Court's deterrence objectives. He believes it might be time to abandon the exclusionary rule, and suggests that the Supreme Court might already be willing to abandon the rule, depending on whether Congress enacts laws that will strengthen the threat of financial liability for Fourth Amendment violations. Two Volokh Conspiracy bloggers also have posts on the exclusionary rule. Orin Kerr continues his discussion of whether Herring v. United States establishes a good faith exception to the exclusionary rule, this time distinguishing Illinois v. Krull, a case where the police relied on a statute which had not been held unconstitutional at the time of the search. Eugene Volokh discusses Texas's statutory exclusionary rule, applied in Wilson v. State. He is surprised Texas has a statutory exclusionary rule.

Juan Lozano reports for AP,

A Texas judge who came under criticism for his ruling declaring the death penalty unconstitutional took back his controversial decision on Tuesday.

However, Judge Kevin Fine said he still wants more information on whether the state's death penalty statute is unconstitutional because it allows for the possible execution of an innocent person.

*                              *                             *

Fine said there was no precedent to guide him in resolving the issues raised by defense attorneys in a case involving a man accused of fatally shooting a Houston woman and wounding her sister during a robbery in front of their home in June 2008.

Has this guy been asleep since 1972 and come out yawning like Rip Van Winkle? These issues have been debated ad nauseam.

Practical to Keep Two Options for Terror Trials: New York Times writers Charlie Savage and Scott Shane report on the idea to retain two separate systems for trying foreign terrorism suspects: military commission and civilian courts.  While politicians argue for one over another, former counter-terrorism officials are warning that the political debate has lost touch with the pragmatic advantages of keeping both the civilian and military systems available.  There are problems with a commissions-only policy: some nations will not extradite terrorism suspects or provide evidence to the United States except for civilian trials; federal courts offer a greater variety of charges for use in pressuring a defendant to cooperate; military commission rules do not authorize a judge to accept a guilty plea from a defendant in a capital case; and the military system is legally untested, so any guilty verdict is vulnerable to being overturned on appeal.  Those in favor of military commissions argue that critics are exaggerating any problems with commissions and overlooking their advantages.  Congress overhauled military commissions last year to increase defendant's rights, and the United States may be able to persuade foreign countries to extradite suspects to military tribunals.  There might be value to keeping both systems.  Juan C. Zuarte, former deputy national security adviser for combating terrorism stated, "We shouldn't inadvertently handcuff ourselves by taking [civilian terrorism trials] completely out of our tool kit."

Getting the Last Word: New York Times writer Adam Liptak reports on the growing frequency of oral dissents being delivered from the Supreme Court bench.  "Dissenting from the bench," a new study to be published in Justice System Journal, contends that dissenting is a sort of nuclear option that "may indicate that bargaining and accommodation have broken down irreparably." There is, of course, an element of stagecraft to oral dissents.  If justices are to engage in what their colleagues may view as a breach of collegiality and decorum, they want it to count.  Justice Clarence Thomas, who has not asked a question from the bench since February 2006, did read a dissent that June from a decision striking down a plan to use military commissions to try suspected terrorists.  "In 15 years on the bench," he said, "I have never read a dissent from the bench, but today's decision requires that I do so." Justice Thomas had dissented from the bench once before, in Stenberg v. Carhart, a 2000 abortion case.

Federal Background Probes Come Into Question: San Francisco Gate writer Bob Egelko reports on the Supreme Court's decision to hear NASA v. Nelson, and decide how far the government can go in looking into the background of NASA scientists and engineers.  The court granted the Obama administration's request to hear an appeal of a lower-court ruling that barred NASA from conducting far-reaching inquiries into the lives of 28 workers at the Jet Propulsion Laboratory in Pasadena.  They passed routine background checks when they were hired, but were ordered to undergo further reviews under a 2004 homeland security directive by President George W. Bush.  28 employees refused to submit to checks and were fired.  The Ninth Circuit Court intervened in October 2007, blocked the firing and ruled that the inquiries were too intrusive and unrelated to national security.  "The decision prevents the routine background checks of many government contract employees and it casts a constitutional cloud over the background-check process the government has used for federal civil service employees for over 50 years," Justice Department lawyers said in seeking Supreme Court review.  The Justices will hear the case in the term that starts in October, with a ruling due by June 2011.

Looks like crime is a major issue in the election campaign under way in Britain. Crime is notoriously difficult to measure, and some variation among different measures is par for the course, but the variations being thrown around over there are wild. Roland Watson has this story in Times Online (London).

Chris Grayling, the Shadow Home Secretary,* said violent crime had risen 70% since 1998-99. He was taken to task by the head of the UK Statistics Authority, Sir Michael Scholar (great name for a stats chief), who said a change in reporting methods produced a false bump. The British Crime Survey says violent crime dropped 41% in the last 12 years. Mr. Grayling then asked the House of Commons library to look into it, and they estimated a 44% increase.

In Taylor v. Louisiana (1975), the Supreme Court constitutionalized what had been up to that point a policy decision made by some courts and legislatures, including Congress, that juries should be drawn from a cross-section of the community. Taken to its logical extreme, this would require racial quotas for jury venires, with the jury commissioner taking affirmative action to meet the quota of minority jurors if neutral selection policies did not naturally produce the supposedly needed numbers. But we don't take it to that extreme, do we?

This AP story from Georgia reports that a murder defendant wants his trial postponed until after the next census to get the benefit of altered county demographics. The story says (emphasis added),

Jury pools in Clayton County, like many other jurisdictions, are drawn from voter registration lists, driver's license data and utility records. The list is then balanced by gender and race using the Census.

Now, every citizen has a duty to serve if summoned, but one ought not be burdened with this duty more often than others by reason of one's race. That would be the effect if people who belong to groups with a higher percentage of ineligibles or no-shows are oversampled to make up the difference.  If the cross-section rule really required that, it would collide head-on with the Equal Protection Clause. In the event of such a collision, equal protection should win. For one thing, it really is in the Constitution, unlike Taylor's complete fabrication.

Business Leaders Take On Prison Reform:  On Sentencing Law and Policy, Doug Berman posts an editorial from the Detroit Free Press describing the Detroit Regional Chamber's plan to reduce corrections costs as part of an overall effort to restructure state government.  The Chamber wants to reduce Michigan's prison spending by $500 million and has made seven recommendations for cutting costs.  First, the Chamber would like to make the parole board a body of professional civil servants replacing the current board of political appointees, charged with enacting and enforcing parole guidelines which are score all inmates for parole and respect the proper role of the sentencing judge.  The Chamber also proposes re-creating a "good time" system that replaces disciplinary credits with credits for accomplishments that increase the likelihood of success upon release, and opening up food service to competition by allowing competitive bidding from the private sector.

No Hearing Day Set for Ninth Circuit Nominee:  At Blog of Legal Times, David Ingram reports that the debate is heating up over Ninth Circuit nominee Goodwin Liu, and that a hearing date for Liu has not been announced, even though a hearing date has been set for Judge Robert Chatigny, nominated on the same day as Liu.  Ingram's post describes the efforts of Liu's critics and supporters, including the efforts of one of Liu's law students to gather material in support of Liu's nomination.  Ingram writes that the debate could heat up further now that Liu's answers to a Senate questionnaire have been published. 

Should President Obama Consider a Protestant?  Today, Washington Post staff writer Robert Barnes wonders whether President Obama's next Supreme Court nominee needs to be a Protestant.  Barnes reports that if Justice Stevens does retire at the end of this term, the Supreme Court would for the first time in its history be without a justice belonging to America's largest religious affiliations.  Catholics have held a majority on the nine-member court since 2006 and the confirmation of Justice Samuel A. Alito Jr. Justice Sonia Sotomayor made it six last summer.  Justices Breyer and Ginsburg are Jewish.  While religion may not play a role in the President's decision, one former Justice has express her views on the issue.  Last fall, when Justice O'Connor was asked about the need for geographic diversity on the court she stated, "I don't think they should all be of one faith, and I don't think they should all be from one state."

Neuroimaging and Competency to be Executed:  CrimProf Blog editor Kevin Cole posts a link and the abstract to New York Law Professor, Michael L. Perlin's new SSRN article Neuroimaging and Competency to Be Executed after Panetti.  In the abstract, Perlin writes that scholars are questioning the impact of neuroimaging evidence on capital punishment trials, wondering whether reliance on such testimony can actually make "sentencing more rational and humane."  He writes that after Panetti v. Quarterman recognized a constitutional right to make a showing that a defendant's mental illness "obstruct[ed] a rational understanding of the State's reason for his execution," competency-to-be-executed hearings may have to become more sophisticated.  Perlin then explores what impact neuroimaging testimony will have on future Panetti hearings.   

Chelsea King Murder Suspect May Be a Serial Killer:  Richard Marosi and Julie Cart of the Los Angeles Times report on the recent discovery of the human skeletal remains of  Amber Dubois, a 14-year-old girl who disappeared one year ago.  When a registered sex offender was arrested for the murder of Chelsea King near San Diego, CA, police refocused their attention on the Dubois case.  Amber's remains were found over the weekend near Pala, CA, and were identified through dental records.  The suspect, John Albert Gardner III, is charged in the slaying of King, and police are looking for possible links that could connect Gardner to Amber.  Gardner lived only a couple of miles from where Amber vanished near Escondido High School, and spent weekends at his mother's house near the lake where Chelsea King was found.  Police are not disclosing any information that led investigators to the remains, however, the tip they received did not come from Gardner.

"Court Won't Disturb Ban on Death Row Interviews":  The Associated Press reports on today's Supreme Court decision to deny an appeal from death row inmate, David Paul Hammer, regarding a federal prison policy that prohibits death row inmates from giving face-to-face interviews to reporters.  Hammer argues that the policy is an unconstitutional violation of his free speech rights.  The policy was adopted after Timothy McVeigh, the Oklahoma City bomber, appeared on "60 Minutes" in 2000.  SCOTUSblog's March 5th Petitions to Watch post provides links to Hammer's petition and the Seventh Circuit's opinion. 

Sex Offender Not Breaking Laws by Living Near School:  Linda Davis of The Oakland Tribune reports that a registered sex offender and parolee living less than 2,000 feet from an elementary school in Piedmont, CA has stirred up concern among the community.  James Donnelly, 71, was recently released from federal prison for possession of child pornography, and registered at the police department in Piedmont.  In addition to his federal conviction, Donnelly was also the subject of a federal investigation into child sex tourism.  Residents are concerned with Donnelly's presence in their community and are asking why he is being allowed to live so close to an elementary school.  According to Piedmont's acting Chief John Hunt, local police cannot arrest Donnelly based on his place of residence.  Donnelly is not listed on the Megan's Law sex offender web site because he was convicted of a federal crime, not a state crime.  In addition, although Jessica's Law prohibits any convicted sex offender from living within 2,000 feet of a school or park, California does not have a penalty associated with violating the provision.  Gary Shih also blogs on the story for the New York Times.

Maryland v. Shatzer May Ease Prosecution of Chandra Levy's Killer: Last Friday, Michael Doyle reported for McClatchy Newspapers that the Supreme Court's decision in Maryland v. Shatzer has eased one of the burdens confronting prosecutors in the high-profile case.  Ingmar Guandique is accused of killing Chandra Levy, and his attorneys have sought to block prosecutors from using information gained during a September 2008 meeting between Guandique and three Washington detectives.  According to Doyle, Shatzer "gives prosecutors potentially more opportunity to use Guandique's unmediated words and behavior against him." 

Attempted Suicide on Death Row? Can a condemned murderer get a stay of execution by attempting suicide? As strange as that sounds, it may have happened in Ohio, according to this AP story by Matt Leingang. Lawrence Reynolds was found unconscious of an overdose of pills just hours before he was scheduled to be executed.  Gov. Strickland issued a 7-day reprieve.

The U.S. Supreme Court today decided a case under the federal Speedy Trial Act, Bloate v. United States, No. 08-728. This is a statutory interpretation case applicable only to federal prosecutions. The Sixth Amendment's Speedy Trial Clause is not mentioned.

The lineup is unusual, with Justices Alito and Breyer in the dissent and the other seven in the majority. Justice Ginsburg wrote a separate concurrence to emphasize that the defendant does not necessarily get the windfall of dismissal for delays that are mostly of his own doing. More needs to be decided on remand.

Most interesting to me is that the Court reads that statute in a straightforward manner and is not willing to bend it to achieve the result that I suspect most of the Justices think is right. In this case, there are other paths to that result as noted by both the majority and the concurrence, but that doesn't seem to be the decisive point for them. The statute says what it says, and the time automatically excluded for pretrial motions is only from motion to decision under the paragraph specifically addressing that issue, 18 U.S.C. §3161(h)(1)(D), not the more general language of other paragraphs. "Had Congress wished courts to exclude pretrial motions preparation time automatically, it could have said so." (n. 13)

This is a hint, though no more than that, of a favorable disposition toward the prosecution's argument in the AEDPA statute of limitations case, Holland v. Florida. That argument is also based on a straightforward reading of the statute, with a premise that Congress prescribed in detail the exceptions to the general rule and implicitly decided not to allow courts to make up additional exceptions. CJLF's brief is here.

California has started releasing criminals early because, so it is said, the state is out of money to fund the prison system.  Only now it turns out that the same force that has driven the state to near-bankruptcy  --  the free spending legislature  --  is considering a bill that would allocate taxpayer dollars to track animal abusers.

I swear I'm not making this up.  Here are the first few paragraphs of the story, as reported by Fox News:

The California state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

Animal abusers would be tracked like sex offenders if California lawmakers have their way. 

The state Legislature is considering a new proposal to establish a registry of names -- similar to widely used sex offender databases -- to track and make public the identities of people convicted of felony animal abuse. 

The registry, which under the law would be posted on the Internet, wouldn't just include names. The bill calls for photographs, home addresses, physical descriptions, criminal histories, known aliases and other details to be made public. 

Animal abuse is a sick, heart-wrenching and disgusting crime, as anyone will agree who has a dog at home (I have the world's most pig-headed Basset hound).  But to propose new and significant spending on an animal abuse registry while releasing criminals on grounds of insolvency sounds like something that could only happen in.............California.

Selecting a Federal Judge:  At SCOTUSblog, Erin Miller posts an account of former White House counsel Gregory Craig's lecture at Georgetown University.  Last year, Craig led the search for Justice Souter's replacement, and according to Miller, Craig's lecture offered insider insights on President Obama's selection of federal judges.  Miller reports that Craig refuted  stories that ethnic and gender diversity factors were an issue late in the Supreme Court selection process by stating that "simply wasn't part of the discussion."  Craig stated that the President had already taken diversity into account in his earliest suggestions, and Craig believes that the President will take diversity into account in the event of any new vacancy.

McDonald Post-Argument Reactions:  The Federalist Society has posted a post-argument SCOTUScast for McDonald v. Chicago.  The discussion is moderated by Northwestern University School of Law George C. Dix Professor Steven Calabresi, and features comments from two authors of amicus briefs in the case.  Clark Nielly, a Senior Attorney at the Institute for Justice, was the Counsel of Record in the Institute for Justice's brief in support of McDonald.  Marquette University Law School Professor J. Gordon Hylton also signed onto an amicus brief.  He joined the Brief of Thirty-Four Professional Historians and Legal Historians in support of Chicago.  Tony Mauro also reports on Blog of Legal Times that Douglas Kmiec, the U.S. Ambassador to Malta, and former Dean of Catholic University of America's law school, has weighed in on Tuesday's oral arguments from the European republic in the Mediterranean Sea.  

Texas State Judge Declares State's Death Penalty Unconstitutional (or Maybe Not):  At Sentencing Law and Policy, Doug Berman posts a link to a Houston Chronicle article by Brian Rogers reporting that state District Judge Kevin Fine granted a pretrial motion to declare the death penalty unconstitutional.  The motion was one of many submitted by defense attorneys Bob Loper and Casey Keirnan arguing Texas' death penalty was unconstitutional for their client, John Edward Green Jr.  But, according to Mark Bennett, the author of Defending People, "Brian Rogers's report is not quite accurate. In fact, it's far enough from accurate to be totally false."  Judge Fine actually denied defendant's motion to hold the death penalty unconstitutional (denial available here), and granted the defendant's Motion to Hold that Texas Code of Criminal Procedure Article 37.071 is Unconstitutional.  Criminal Procedure Article 37.071 addresses procedure in capital cases, and is a far cry from declaring the death penalty unconstitutional.  Ashby Jones of Wall Street Journal's Law Blog reports that by granting the motion Judge Fine agreed with defendant's argument that the law providing for the procedures surrounding instructions to a jury in the Texas Code of Criminal Procedure violated the Eighth and 14th Amendments.  According to Rogers' article, not even University of Houston Law Center Professor Sandra Guerra Thompson believes Fine's decision would survive appellate review. 

Will Obama Opt for Military Tribunals for 9/11 Mastermind?:  Jennifer Loven of the Associated Press reports that the Obama administration may opt for a military tribunal for Khalid Sheik Mohammed and other known terrorists.  Attorney General Eric Holder has pushed for Mohammed to be tried in a civilian court, but because of costs, security, and logistical concerns, he has faced strong opposition and, after the attempted Christmas airline bombing, the Obama administration's terrorism policies were widely scrutinized.  CNN reporter Suzanne Malveaux adds that congressional leaders are arguing that Mohammed should not be entitled to all of the protections and privileges that a defendant receives in a civilian court.  Senator Joe Lieberman said to try Mohammed and other terrorists "as common criminals, giving them the constitutional rights of American citizens in our courts, is justice according to 'Alice in Wonderland.'"  No recommendation has been given to the President, but there's hope for a decision to be made before March 18.  Bill Otis also reports on the proposal. Fox News has this story by Catherine Herridge and Major Garrett.

Pentagon Shooter Harbored Resentment for American Government:  Associated Press writers Matt Apuzzo and Eileen Sullivan report on yesterday's shooting at the Pentagon, and provide new information about the shooter.  Last night, John Patrick Bedell, a 36-year-old American citizen, opened fire on two Pentagon police officers at the subway station across the street from the Pentagon building.  Officers quickly responded and fired back, fatally shooting the gunman.  Newly discovered information suggests that Bedell had a long-held frustration and distrust for the Federal government.  Internet postings and blogs suggest that het may have resented the military and had significant doubts about the truth behind the 9/11 attacks.  An investigation continues, and information on the shooting can be found here. SF Chron writers Jaxon Van Derbeken and Victoria Colliver have this profile of  Bedell and his history of mental illness.

Nevada Supreme Court Denies "Schizophrenic's" Appeal:  Martha Bellisle reports on the Nevada Supreme Court's decision to reject Tamir Hamilton's appeal.  Hamilton was convicted and sentenced to death for the rape and murder of Holly Quick.  He was sentenced to death for the murder, and two consecutive terms of 10 years to life in prison for the rape.  Weeks before the Quick killing, Hamilton had also raped another female.  Hamilton appealed his conviction, claiming there was a racial bias in selecting the jury because the judge allowed the prosecutor to exclude the only two black prospective jurors.  Yesterday, the Nevada Supreme Court said the reasons for excusing the jurors were not "pretexts for racial discrimination."  Hamilton also claimed that executing him would violate the Eighth Amendment because he is an "incurable schizophrenic."  The court responded, "Hamilton fails to demonstrate that he is incompetent to be executed and provides no authority indicating that schizophrenics as a class cannot be executed."  The decision, Hamltion v. State of Nevada, can be found here.

It dares not speak its name, that is, because its name is murder.

That is the demonstrated cost of prison sentences that are too short to persuade, or force, offenders to refrain from returning to crime.  The case in point, and in the news, is that of Chelsea King, a high school student who was raped and murdered this week.  A fellow named John Gardner has been arrested for the crime.  At present, there appears to be little realistic doubt of his guilt.

The twist in the case is that Gardner pleaded guilty in 2000 to molesting a 13 year-old girl.  Instead of being required to serve the eleven years to which he could have been sentenced, he was given a six year sentence, of which he served five.

The case illuminates two long-running and active themes the defense bar has been pushing. One is that we should substantially reduce prison sentences to save money. The other is that sex offenders are treated too harshly (forced to sleep under a bridge in Miami, etc.), apparently because the country consists of high-handed and puritanical morons.

 

The lead paragraphs from a Washington Post story reveal a possible major development in the coming terror trial of 9-11 planner Khalid Sheik Mohammed:

President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal, administration officials said, a step that would reverse Attorney General Eric H. Holder Jr.'s plan to try him in civilian court in New York City.

The president's advisers feel increasingly hemmed in by bipartisan opposition to a federal trial in New York and demands, mainly from Republicans, that Mohammed and his accused co-conspirators remain under military jurisdiction, officials said. While Obama has favored trying some alleged terrorists in civilian courts as a symbol of U.S. commitment to the rule of law, critics have said military tribunals are the appropriate venue for those accused of attacking the United States.

The notion that "the rule of law" cannot prevail in military tribunals is at best ahistorical and at worst absurd and insulting to the armed forces.  Such tribunals (with significantly fewer defendant protections than exist today) were good enough for Franklin Roosevelt when he ordered captured Nazi saboteurs put before them in 1942.  And the Nuremberg trials were themselves military tribunals.

It's unfortunate and worrisome that it has taken the administration this long to figure out that KSM is an enemy combatant, not the next fellow on the police blotter  --  if indeed they've figured it out.  Still, as they say, better late...

 

Equitable Tolling in Holland v. Florida:  At SCOTUSblog, Harvard Law School student Kate Wever recaps Monday's oral argument in Holland v. Florida.  Wever reports that Holland's attorney, Todd Scher, used the facts of Holland's case to support his argument that Holland was entitled to equitable tolling.  When Justice Sotomayor questioned him on where to draw the line for future cases, and to distinguish between the negligence and "intentional malfeasance," Scher returned to the facts of Holland's case to demonstrate that his client was entitled to equitable tolling.  Florida's Solicitor General, Scott Makar, endured questioning by Justice Breyer on whether equitable tolling should be denied even when the missed deadline resulted from an earthquake, fire, flood, or counsel being kidnapped.  Although Makar initially maintained (consistent with Florida's brief) that it should be, by the end of his argument he appeared to concede that equitable tolling might be available in situations external to the attorney-client relationship.  CJLF's brief is available here. 

Washington Changes to One-Drug Execution Method:  Yesterday, Associated Press writer Rachel La Corte reported that Washington has become the second state to switch to a one-drug system for executing prisoners.  According to La Corte, Washington's Attorney General filed a motion with the state Supreme Court on Tuesday arguing that now that Washington has changed its protocol portions of the appeal of death-row inmate Darold Stenson, challenging of the drug protocol's constitutionality are now moot.  The state Department of Corrections is in the process of rewriting the execution policy that will make Washington the second state in the nation to use the one-drug method.  

Backlash Against Freeing Prisoners:  At Sentencing Law and Policy, Doug Berman links to a New York Times article by Monica Davey reporting on public backlash in the wake of state legislation trimming prison populations by expanding parole programs and early releases.  Davey reports that states like Colorado, Michigan and Oregon are reducing their prison populations to reduce prison spending.  She reports that Michigan, which reduced its state prison population by 3,200 inmates last year, is experiencing its highest parole rate in the past 16 years.  According to Davey, parole has become such a controversial issue in Michigan that Attorney General Mike Cox, who normally defends the State Department of Corrections and its Parole and Commutation Board in their parole decisions, has also filed separate amicus briefs in eight cases opposing some of the state's parole decisions.  Yesterday, Berman also posted a link to The Sentencing Project's reports demonstrating that states are reforming sentencing policies and scaling back on the use of imprisonment in an effort to control spending.

Putting Seventh Circuit Judges on the Stand:  Yesterday, Orin Kerr posted Cross Examining Frank Easterbrook on Volokh Conspiracy, and described Judge Easterbrook's testimony in the trial of Harold Turner, the New Jersey blogger charged with encouraging his readers to murder the three judges as retribution for their decision upholding a Chicago handgun ban.  Mark Fass has the story on Law.com, and Kerr posts on the attempted cross-examination of Judge Easterbook by defense counsel Michael Orozco.  Apparently after Judge Easterbrook told Orozco that he was "not grasping the case," he went on to give an extended history of the Fourteenth Amendment and its relationship to the Second Amendment, and U.S. Supreme Court precedent regarding both amendments dating back to 1873.  Kerr wonders what the jury was thinking.  Ashby Jones posts more on the Judge Easterbrook's testimony, including his response to Orozco's question about what might happen if the Supreme Court overturns McDonald v. Chicago.  "If it's overturned," Orozco asked, "doesn't that make Hal Turner correct?"  Responded Easterbrook: "This blog post says any judge who decides a case incorrectly is supposed to be assassinated. That is not the way the system works."   

Opinions Differ On Supreme Court Ruling on Miranda Rights: Washington Post Staff Writer Ruben Castaneda reports on the Supreme Court's decision in Maryland v. Shatzer, and the different ways prosecutors and defense attorneys are interpreting its holding.  The Court's opinion allows police to interview a suspect who has invoked his Miranda rights, provided that law enforcement officers release the suspect from custody and wait 14 days.  The decision "doesn't erode or cut back on Miranda rights at all," according to Maryland Attorney General Douglas F. Gansler, who argued the case on behalf of the state in October.  He adds, "[t]he interviewing officer still has to read the suspect his or her Miranda rights."  Peter D. Greenspun, a defense attorney based in Northern Virginia, disagreed.  "This is going to lead to disastrous consequences for those who have not committed any crime and those who have a context for their actions," Greenspun said. "The Supreme Court has now gone into legislative mode.  Apparently, at 14 days and one minute, Miranda no longer applies."  One prosecutor believes the ruling could be useful in cases where new evidence, such as DNA, comes to light after a suspect has invoked Miranda and been released.  CJLF's brief on the case can be found here.

"Justices Weight Claims Over Torture in Somalia": New York Times writer Adam Liptak reports on Wednesday's Supreme Court oral arguments in Samantar v. Yousuf, about whether foreign officials may be sued in the United States over torture claims.  The Petitioner in this case, Bashe Abdi Yousuf, is asking the Court to allow him to sue Mohamed Ali Samantar, the minister of defense and prime minister of a regime that allegedly tortured Yousuf in Somalia in the 1980s.  The Torture Victim Protection Act of 1991 allows lawsuits against individuals said to have committed torture under the authority of a foreign nation, but the Foreign Sovereign Immunities Act of 1976 bars suits against foreign states and their "agencies or instrumentalities." Most of yesterday's arguments concerned whether that last phrase included current or former officials.  Justice Stephen G. Breyer suggested that it would be an odd legal system that would require a lawsuit against a foreign government to be dismissed but allow the same suit to proceed once the plaintiff listed the names of the officials involved.  Deputy Solicitor General Edwin S. Kneedler sided with the plaintiffs in urging the Court to reject Mr. Samantar's statutory immunity argument.  But he said Mr. Samantar may still be immune from suit under common law principles, depending on the position taken on that by the State Department.

"Liu Nomination Pushes 9th Circuit Farther Left":  Yesterday, Ross Kaminsky of HumanEvents.com had this opinion piece discussing UC Berkeley Law Professor Goodwin Liu's nomination to the 9th Circuit.  In the article, Kaminsky states that by nominating Liu, President Obama is working to push the nation's most liberal, and most overturned, court even further outside the mainstream of American jurisprudence.  The article mentions Liu's views on the death penalty.  Kent has suggested that, "[t]o anyone familiar with the death penalty debate, it is painfully evident that Professor Liu takes the murderers' side on every debatable point.  If confirmed, there is no doubt in my mind that he will be a vote to obstruct the enforcement of capital punishment in virtually every case." Kaminsky believes that Liu's left-leaning positions on specific issues emanate from a view of the Constitution which is anything but "originalist" and is concerned about what this could mean for our courts.

Here are photos from the death penalty "mock trial" event in London on Tuesday. The link starts at index page 3, where most of the pictures of the home team are.

We hope to have a full online video of the event soon.

Registered Sex Offender Linked to Body:  Associated Press Writer Elliot Spagat reports today on the scheduled arraignment set for this afternoon on charges against John Albert Gardner.  Gardner was arrested for the rape and murder of the San Diego high school student, Chelsea King.  In 2000, Gardner, a 30-year-old ex-con, was facing 11 years in prison for molesting a 13-year-old female, but after a plea agreement he served only five. He was then released on parole for three years until September 2008.  Gardner had been previously linked to an assault on a 22-year-old woman.  Five days after King's disappearance, a body was found buried in a grave on the south shore of Lake Hodges.  San Diego County Sheriff William Gore said there is a "strong likelihood" the body found is Chelsea's.  Dr. Matthew Carroll, a psychiatrist who interviewed Gardner years ago, believed Gardner ought to have served a longer sentence: he was a "continued danger to underage girls in the community."

Convict Found Guilty of Attempted Murder and Mayhem:  Jaxon Van Derbeken of the San Francisco Chronicle reports on yesterday's conviction of 29-year-old Scott Thomas for the attempted murder and mayhem charges in a stabbing attack at a bakery that nearly killed a 15-year-old San Francisco girl in 2007.  A second phase of the trial is set to begin tomorrow to determine if Thomas was sane at the time of the attack.  If Thomas is found sane, he will face life in prison.  Prosecutor Scot Clark argues that the attack was premeditated and Thomas intended to decapitate the 15-year-old.  The case stirred up public outrage after it was revealed Thomas was let out of prison by mistake without supervision the day before the crime. Linda Schaller, the mother of the victim, said Thomas has portrayed himself as a "poor boy": "He's not a poor boy; he's a monster."

Death Sentence Long Overdue for Self-Avowed Racist:  Darci Marchese of the Associated Press reports  that attorneys for rapist/murderer Paul Powell are asking Virginia Governor Bob McDonnell to commute his death sentence.  Powell, a self-avowed racist, is scheduled to be executed on March 18.  In 2000 Powell was sentenced to death for killing an acquaintance, 16-year-old Stacie Reed and raping her 14-year-old sister.  The Virgina Supreme Court overturned his death penalty because no special circumstances to the murder was proven at trial.  No longer facing the death penalty, Powell wrote a note to his attorney detailing Stacie's slaying.  In the letter, Powell described confronting Stacie at her home about dating a black man and threatened to rape her.  When she fought back Powell stabbed her in the heart.  He then took a break to have a smoke and iced tea, while he waited for Stacie's sister to come home.  He eventually raped the sister, who managed to escape before he could kill her.  Armed with Powell's letter, Prince William County Commonwealth's Attorney, Paul Ebert, dropped the first indictment and prosecuted Powell for the attempted rape and murder of Stacie.  In 2003,  Powell was convicted again and sentence to death.  Last July, Powell's execution was stayed by the U.S. Supreme Court, but the Court denied cert last month. 

Will the Supreme Court Extend the Second Amendment to States?  Lyle Denniston thinks so.  At SCOTUSblog, Denniston reports that after today's oral arguments in McDonald, et al., v. Chicago, et al. (08-1521), the Court seems likely to extend the Second Amendment beyond the federal level, based on the Due Process Clause of the 14th Amendment.  This was the position argued by the N.R.A's attorney, former Solicitor General Paul D. Clement, who argued the Court should allow a "carryover" into the 14th Amendment of all of the jurisprudence that develops on the Second Amendment's scope.  This argument was different than the one advanced by the Petitioner's attorney, Alan Gura.  During his time at the podium, Gura argued that the 14th Amendment's Privileges or Immunities Clause was intended to incorporate the Second Amendment to apply to the states.  According to Denniston, Gura had barely finished his opening comments before Chief Justice Roberts noted that the Court had laid that argument to rest in the SlaughterHouse Cases in 1873.  Gura's argument left Justice Scalia, the author of District of Columbia v. Heller, wondering why Gura was "asking us to overrule 140 years of prior law....unless you are bucking for a place on some law school faculty."  Clark Neily, one of the attorneys in Heller, explains why Gura's theory is correct at NRO'S Bench Memos.  Tony Mauro's Blog of Legal Times post on the McDonald argument is available here, while Mike Sacks of First One @ One First reports on the long line for McDonald's oral arguments.   

Lester Jackson, PhD Comments on Death Penalty Abolitionists:  At Homicide Survivors, Dudley Sharp posts a copy of Jackson's article, "The Sinister Secrets of Abolitionists."  In his newest piece, Jackson, a frequent commenter on the Death Penalty, writes "[t]he sinister secret of so-called 'abolitionists' is that they actually support capital punishment. The only way to deny this is to disclaim any responsibility for a premeditated government policy of extensively sacrificing the safety and lives of myriad law-abiding individuals on behalf of convicted felons, including murderers. Clearly, state policy fostering repeat crime, including murder, should be seen as capital punishment of the innocent."

States'  Law Enforcement Allocation Can Guide the Feds:  On Sentencing Law and Policy, Doug Berman posts a link and the abstract for NYU Professor Rachel E. Barkow's new article, Federalism and Criminal Law: What the Feds Can Learn from the States.  The abstract states that an enduring question of criminal law is how authority should be allocated between local, state, and federal prosecutors.  Barkow believes that the answer to solving this question may be found in examining how the states allocate law enforcement power.  Her study found that "states are virtually unanimous in their deference to local prosecutors, the small number of categories they identify for centralized authority in a state-level actor, and their support of local prosecution efforts with resources instead of direct intervention or case appropriation." 

An editorial in today's Los Angeles Times comments, "[w]e'd prefer a longer break" than the 14-day "break in custody" rule established by last week's Supreme Court decision in Maryland v. Shatzer.  While the editorial commends the Court for drawing a bright line rule that police may reinterrogate a suspect 14 days after the suspect's first interrogation, it also finds it disturbing that between Shatzer's first interrogation in 2003, and his second in 2006, Shatzer remained in prison.  The editorial comments that "[i]mprisonment is not 'normal life,'" and takes issue with the Court's conclusion that Shatzer, who had remained in prison, had returned to "normal life" for some time before the second interrogation.  The editorial writes, "[t]he court would have been truer to Miranda if it had recognized that, in this case, there was no gap in custody."

The problem with this argument is that Shatzer didn't really address Miranda, it addressed Edwards v. Arizona, and whether there could be an exception to Edwards' rule that once a suspect invokes his right to counsel police cannot reinterrogate the suspect unless he initiates further communication.  Edwards was intended to prevent police from holding suspects in jail and using coercive measures to badger them into giving confessions. 

Last week's decision in Shatzer acknowledged that badgering and police coercion are far less likely when a suspect has been released from the interrogation room "and returned to his normal life for some time before the later reinterrogation."  The decision acknowledged that when a suspect has been released and returns to his daily routines "there is little reason to think that [a suspect's] change of heart regarding interrogation without counsel has been coerced."  The suspect in Edwards had not been released, and had been held overnight and questioned until he confessed.  Edwards sought to reinforce Miranda by ending this type of practice, and the exception to Edwards recognized in Shatzer does not undermine the Fifth Amendment's protection from compelled self-incrimination.  Miranda warnings must be read to suspects and interrogation cannot continue until a suspect waives his rights.  Shatzer simply recognized that a suspect could have a "change of heart" and might voluntarily answer police questions 14 days after his first interrogation.  

Can Lawyer Negligence Extend Habeas Filing Deadline?: Marcia Coyle of the National Law Review reports on Monday's Supreme Court argument discussing how bad a lawyer must be to warrant stopping the clock on the one-year time limit for filing a prisoner's federal habeas petition.  In Holland v. Florida, the Justices confronted two issues: whether the one-year deadline for filing habeas petitions under the Antiterrorism and Effective Death Penalty Act can be tolled for equitable reasons, and whether a lawyer's gross negligence is one of those reasons for halting the clock.  The issue stems from the death penalty conviction of Albert Holland in 1991.  After his conviction became final in 2001, Holland had 365 to file a federal habeas petition.  The state of Florida appointed Bradley Collins to represent him in state post-conviction proceedings and Collins filed a state post-conviction motion 351 days into the one-year federal state of limitations.  That motion stopped the clock on the one-year deadline, but the clock would resume moving once his post-conviction movement was denied, leaving him only 14 days in which to file the federal petition.  Collins ultimately missed that deadline.  Florida Solicitor General Scott Makar argued that federal rules may permit exceptions when there are problems with access to the courts, but he argued that Congress imposed the one-year limit in order to avoid the use of habeas petitions to delay finality of convictions and sentences.  The Supreme Court has never explicitly ruled on whether equitable tolling is available under AEDPA, but, eleven circuits have held it is available.  CJLF's brief is available here.

Dating Game Killer Enters Penalty Phase: The Associated Press reports the penalty phase of Rodney Alcala's trial will begin today.  Jurors last week convicted the 66-year-old of killing 12-year-old Robin Samsoe and four women in the late 1970s.  It is the third time he has been found guilty of killing Samsoe.  The previous convictions and death sentences were all overturned.  Alcala could be sentenced to death or life without parole.

"Nevada Supreme Court hears Mack plea for new trial": Reno Gazette-Journal writer Martha Bellisle reports the Nevada Supreme Court's hearings to grant a new trial to convicted killer Darren Mack.  Mack, convicted of killing his wife and shooting their divorce judge, may get a new trial because his lawyers allowed him to plead guilty without discussing defenses that would have meant a lighter sentence.  Mack's new lawyer, Marcus Topel, told the Nevada Supreme Court Monday, that "it is undisputed that his counsel had not discussed with him the question of voluntary manslaughter." He added that Mack did not have information he needed to waive his rights and accept a plea deal that stopped his trial in 2007.  But Christopher Lalli, a Washoe County special prosecutor, said that nothing in the law supports the idea that a defendant must be told about the possibliity of being convicted of a lesser crime before pleading guilty.  "The defendant entered a knowing and intelligent and voluntary plea to murder," Lalli said. "He cannot now avoid the consequences of his actions by attempting to invent a new area of Nevada jurisprudence." Under the plea deal that Mack accepted in 2007, Mack was sentenced to life with the possibility of parole after 20 years for the murder of his wife and a consecutive term of 40 years with possible parole for shooting his divorce judge.

Today, the U.S. Supreme Court announced three opinions for cases argued this term: Johnson v. United States (08-6925); Reed Elsevier v. Muchnick (08-103); and Mac's Shell Service, Inc. v. Shell Oil Products Company; Shell Oil Products Company v. Mac's Shell Service (08-240; 08-372).  At SCOTUSblog, Erin Miller posts brief descriptions of each of the opinions. 

Reed Elsevier and Mac's Shell address areas copyright and franchise law, but today's decision in Johnson held that in the context of  the Armed Career Criminal Act's definition of "violent felony," the phrase "physical force" means violent force.  This means that in order to qualify for enhanced sentencing under "violent felony" section of the Armed Career Criminal Act, a person must have engaged in "force capable of causing physical pain or injury to another person."  The individual could not be sentenced for a violent felony if the person had been convicted for "unwanted touching." 

In 2007, Curtis Johnson pleaded guilty to knowingly possessing ammunition after having been convicted of a felony.  This violated 18 U.S.C. §922(g)(1).  Based on its determination that Mr. Johnson had three earlier convictions for violent felonies, the district court sentenced him to 185 months in prison. Mr. Johnson appealed the court's determination with respect to his 2003 conviction for "unwanted touching," which had been elevated from simple battery to felony status because of a prior battery conviction.

In today's 7-2 decision, Justice Scalia wrote that Johnson's 2003 "conviction was a predicate conviction for a 'violent felony' under the Armed Career Criminal Act only if '[a]ctually and intentionally touch[ing]' another person constitutes 'physical force' within the meaning of §924(e)(2)(B)(i)."  When the Court ruled that it was not, it reversed the judgment of the Eleventh Circuit, set aside Johnson's sentence, and remanded the case for further proceedings.  Justice Alito wrote a dissent, which Justice Thomas joined.