Sentencing Commission Proposes Restricting Judges’ Use of Acquitted Conduct

“The U.S. Sentencing Commission released proposed amendments to federal sentencing guidelines last week that would, among other things, limit judges’ ability to enhance defendants’ sentences based on conduct they were acquitted of by a jury.
It may sound bizarre and antithetical to what everyone is taught about the U.S. justice system, but defendants can be punished for crimes even when a jury finds them not guilty of the charges. At the sentencing phase of a trial, federal judges can enhance defendants’ sentences for conduct they were acquitted of if the judge decides it’s more likely than not—a lower standard of evidence than “beyond a reasonable doubt”—that the defendant committed those offenses. What this does in practice is raise defendants’ scores under the federal sentencing guidelines, leading to significantly longer prison sentences.”

“The Sentencing Commission’s proposal would amend the federal sentencing guidelines to limit judges from considering acquitted conduct at sentencing unless the conduct was either admitted by the defendant during a guilty plea or found beyond a reasonable doubt. The sentencing guidelines are not binding, but federal judges are required to at least consider them and explain their reasoning if they deviate from them.”

“For the past several years, bipartisan bills have been introduced in Congress to ban the use of acquitted conduct at sentencing in federal trials, but none have passed.”

“A petition is also currently pending before the Supreme Court in another case involving acquitted conduct”

The Trumpiest court in America

“Trent Taylor says his cell, in a Texas psychiatric unit operated by the state’s prison system, was covered in human excrement. Feces smeared the window and streaked the ceiling. Someone had painted a shit swastika on the wall, alongside a smiley face. According to Taylor’s allegations in a federal lawsuit, there was such a thick layer of dried human dung on the floor of the cell that it made a crunching sound as he walked naked across the cell.
Taylor alleged that he was kept in this cell for four days, where he neither ate nor drank due to fears that the excrement, which was even packed inside the cell’s water faucet, would contaminate anything he consumed. Then, on the fifth day, he was moved to a bare, frigid cell with no toilet, water fountain, or bed. A clogged drain filled the new cell with choking ammonia films. With nowhere to relieve himself, Taylor held his urine for 24 hours before he could do so no longer. And then he had to sleep alone on the floor while covered in his own waste.

The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards.

A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in “extremely dirty cells for only six days” — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that “prisoners couldn’t be housed in cells teeming with human waste for months on end.”

This decision, in Taylor v. Stevens, is hardly aberrant behavior by the Fifth Circuit, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi. The Fifth Circuit’s Taylor decision stands out for its casual cruelty, but its disregard for law, precedent, logic, and basic human decency is ordinary behavior in this court.

Dominated by partisans and ideologues — a dozen of the court’s 17 active judgeships are held by Republican appointees, half of whom are Trump judges — the Fifth Circuit is where law goes to die. And, because the Fifth Circuit oversees federal litigation arising out of Texas, whose federal trial courts have become a pipeline for far-right legal decisions, the Fifth Circuit’s judges frequently create havoc with national consequences.

The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid.

As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”

And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022.”

“while the Fifth Circuit is so extreme that its decisions are often reversed even by the Supreme Court’s current, very conservative majority, its devil-may-care approach to the law can throw much of the government into chaos, and even destabilize our relations with foreign nations, before a higher authority steps in. Worse, the Fifth Circuit’s antics could very well be a harbinger for what the entire federal judiciary will become if Republicans get to replace more justices.”

“the Supreme Court only hears a tiny percentage of the cases decided by federal appeals courts, and it almost never hears cases brought by extraordinarily vulnerable litigants like Trent Taylor. Indeed, it hears these cases so infrequently that, when the Court decided to intervene on Taylor’s behalf, Justice Samuel Alito wrote a brief opinion complaining that Taylor’s case “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.”

The Fifth Circuit hears a steady diet of ordinary immigration cases, which will often decide whether an individual immigrant can remain with their family in the United States or whether they must be deported to a nation they may barely know, or where they may fear for their physical safety. These cases are now heard by judges like Andrew Oldham, Trump’s sixth appointment to the Fifth Circuit, who spent much of his time both on and off the bench seeking to make federal immigration policies harsher to immigrants.

Similarly, the court hears a steady diet of employment discrimination cases.”

“there are reforms that Congress or the Supreme Court could implement, which would diminish both the Fifth Circuit’s power and the power of litigants to channel political lawsuits to highly ideological judges. Congress, for example, may strip the Fifth Circuit of its jurisdiction over certain cases, or require certain suits to be filed in a federal court that is not located in the Fifth Circuit. It could also add seats to the court, which would then be filled by President Biden.

A less radical reform, proposed by former Fifth Circuit Judge Gregg Costa, would prevent litigants like the Texas AG’s office from handpicking judges who are likely to rule in their favor — and whose decisions are equally likely to be affirmed by the Fifth Circuit. Costa proposed having all lawsuits seeking a nationwide injunction against a federal law or policy be heard by three-judge panels, rather than a single judge chosen by the plaintiff. These panels’ decisions would then appeal directly to the Supreme Court, bypassing the Fifth Circuit (although a single Fifth Circuit judge might sit on some of these panels).

Realistically, however, systemic reforms to the problem of judge-shopping — and to the problem of a lawless court of appeals — are unlikely to happen anytime soon. The House of Representatives will soon be controlled by Republicans, who are unlikely to support legislation that reduces the power of their partisan allies on the bench. And the Supreme Court has six justices appointed by Republican presidents.

And so the Fifth Circuit will continue to hand down its decrees, confident that no one with the power to stop them is likely to do so.”

A notorious Trump judge just fired the first shot against birth control

“This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.
But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.

This behavior is enabled, moreover, by the procedural rules that frequently enable federal plaintiffs in Texas to choose which judge will hear their case — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk. So litigants who want their case to be decided by a judge with a history as a Christian right activist, with a demonstrated penchant for interpreting the law flexibly to benefit his ideological allies, can all but ensure that outcome by bringing their lawsuit in Amarillo.”

The Wisconsin Supreme Court Just Made Ballot Drop Boxes Illegal

“the Wisconsin Supreme Court..rendered most ballot drop boxes illegal in the state. The Court found that state law, which requires that mail-in ballots be delivered to a “mailbox,” does not allow “delivery to an unattended ballot drop box.””

Opinion | The Supreme Court Decisions on Guns and Abortion Relied Heavily on History. But Whose History?

“History has always played a role in constitutional interpretation, for some jurists more than others. But if history is going to be a key driver for the Supreme Court’s decisions — on the assumption that it is more legitimate than other forms of judicial discretion — then it is imperative to ask where the justices are getting their historical sources, whether those sources are fact-checked, and (most importantly) who is narrating the history.

Increasingly, the justices are relying on amicus briefs for historical information. Amicus briefs — also called “friend of the court” briefs — are submitted by third parties and have gone through a tremendous growth spurt at the Supreme Court in recent years.”

“These amicus briefs — sometimes signed by historians, sometimes not — are virtually all written by lawyers and often filed by motivated groups that are pressing for a particular outcome. The history they present, in other words, is mounted to make a point and served through an advocacy sieve. That distinguishes this type of history from the work product of professional historians who (even when they have a point of view) are trained to gather evidence dispassionately. As historian Alfred H. Kelly once put it, “The truth of history does not flow from its usefulness.” But usefulness is exactly the point when litigating a case at the Supreme Court — and historical sources are being used by the advocates to win.”

“The modern reality is the justices look to their friends and allies for historical sources, and rather than fact-check them — which they don’t have the time, resources, or expertise to do — they accept these historical narratives at face value. In the end, this creates an echo chamber where the history the justices cite is the history pressed to them by the groups and lawyers they trust, which conveniently comports with their preexisting worldviews and normative priors.”

“Professional historians are already complaining that the court got the history wrong in its recent cases, either by cherry-picking authorities or leaving out important nuance or both. When it came to the history of gun regulation, the court was awash in competing historical amicus briefs. The court chose one side, and in so doing caused historians to cry foul that the other history was ignored or distorted. In the abortion case, historians of the Middle Ages say some of the texts the court cites as proof that abortion was a crime in the 13th century are not about what we would think of as crime at all, but instead about “penance” imposed by the Church — an ambiguity easily lost on people who are unfamiliar with medieval Latin. Indeed, it is worth noting that much of the 13th-century history the court recounts seems to have come from a brief filed not by historians, but by professors of jurisprudence who publish on the moral implications of abortion — well-respected professors in their fields, perhaps, but certainly not medievalists.
This reveals a systemic problem about relying on amicus briefs for historical narratives: The amicus market is dominated by motivated scholars. Because many neutral experts do not pay attention to the courts or participate in advocacy, the historical accounts presented to the justices are necessarily incomplete and motivated to build a particular argument.”

“the Supreme Court should require anyone who files an amicus brief to disclose who paid for it. Current rules require disclosure only of whether the party contributed financially or otherwise to the brief, but they do little to shed light on briefs filed by neutral-sounding organizations that are in reality funded by those with an interest in the case (even if not the party).”

“the justices should borrow a practice from the laws of evidence and forbid any amicus brief presenting historical or other factual claims from adding accompanying legal argument. At trial in lower courts, there are strict limits on expert witnesses offering opinions on the law or generally opining on the case’s outcome. The idea is that this legal commentary detracts from the status of the expert as a neutral adviser, and that it oversteps the value and point of an expert witness in the first place.”

“justices should build in a process to request the specific history they are interested in earlier in the case’s timeline — in an attempt to recruit historians who may not be following the court’s every move but who are actual experts in the matter. If historians of medieval law knew their knowledge on abortion in the 13th century was so valuable when the court took the case (as opposed to after the leak in Dobbs) there might be incentive for more of them to participate in the briefing process.”

“If we are going to empower judges to referee history we must start paying more attention to the process through which they acquire that history. Many Americans see the court’s recent decisions as a threat to judicial legitimacy; perhaps one under-recognized threat to that legitimacy lies in the process used to make them.”

The Supreme Court just let a Trump judge seize control of ICE, at least for now

“the Supreme Court handed down a brief, 5-4 decision that effectively places Drew Tipton, a Trump-appointed federal trial judge in Texas, in charge of many of Immigration and Customs Enforcement’s (ICE) decisions about which immigrants to target.

The decision was largely along party lines, except that Justice Amy Coney Barrett joined the Court’s three Democratic appointees.

The decision in United States v. Texas is temporary, but the upshot of this decision is that Tipton will effectively wield much of Homeland Security Secretary Alejandro Mayorkas’s authority over how ICE officers prioritize their time for as much as an entire year — and that’s assuming that the Biden administration ultimately prevails when the Court reconsiders this case next winter.

At issue in this case is a perfectly standard decision Mayorkas made last September. Federal law provides that the secretary of homeland security “shall be responsible” for “establishing national immigration enforcement policies and priorities.” Pursuant to this authority, Mayorkas issued a memo to ICE’s acting director, informing him that the agency should prioritize enforcement efforts against undocumented or otherwise removable immigrants who “pose a threat to national security, public safety, and border security and thus threaten America’s well-being.”

Then-secretaries of homeland security issued similar memos setting enforcement priorities in 2000, 2005, 2010, 2011, 2014, and 2017.

Not long after Mayorkas handed down his memo, however, the Republican attorneys general of Texas and Louisiana went to Tipton, a Trump judge with a history of handing down legally dubious decisions halting Biden administration immigration policies, asking Tipton to invalidate Mayorkas’s memo. Tipton obliged, and an especially conservative panel of the United States Court of Appeals for the Fifth Circuit allowed Tipton’s order to remain in effect.

DOJ asked the Supreme Court to stay Tipton’s decision, temporarily restoring an elected administration’s control over federal law enforcement while this case proceeds. But the Court just refused. And it did so without explanation.”

Supreme Court Justice Clarence Thomas told his law clerks in the ’90s that he wanted to serve for 43 years to make liberals’ lives ‘miserable’

“In a 1993 New York Times article, a former law clerk of Clarence Thomas said he held a grudge against liberals.

The conservative Supreme Court Justice was resentful of the media coverage of his confirmation hearing.

“The liberals made my life miserable … and I’m going to make their lives miserable,” NYT reported he said.”

Two GOP judges just stripped social media companies of basic First Amendment rights

“The decision in NetChoice v. Paxton reinstates an unconstitutional Texas law that seizes control of the major social media platforms’ content moderation process, requiring them to either carry content that those platforms do not wish to publish or be so restrictive it would render the platforms unusable. This law is unconstitutional because the First Amendment prohibits the government from ordering private companies or individuals to publish speech that they do not wish to be associated with.”

“Although the court did not identify which of the three judges dissented, it’s not hard to guess how the votes broke down. The panel includes Judge Leslie Southwick, a relatively moderate conservative appointed by President George W. Bush, as well as two notoriously right-wing judges.
Judge Edith Jones is a former general counsel to the Republican Party of Texas who was appointed by President Ronald Reagan when she was just 35 years old. Since then, she’s developed a reputation as an especially caustic conservative — Jones once told a liberal colleague to “shut up” during a court hearing, and she joined an opinion arguing that a man should be executed despite the fact that his lawyer slept through much of his trial.

The third judge, Andy Oldham, is a young Trump appointee who clerked for Justice Samuel Alito. Among other things, Oldham is the author of a Fifth Circuit opinion permitting a Trump-appointed district judge to seize control of much of the nation’s policy governing the US-Mexico border.

It is likely, but not entirely certain, that Jones and Oldham are right-wing outliers even when compared to the median justice on the Supreme Court. In 2021, Justice Clarence Thomas published an opinion expressing sympathy for the “common carrier” theory Texas relies on in NetChoice. But that opinion was joined by no other justice.

In any event, given the enormous disruption the Fifth Circuit’s NetChoice decision is likely to create for social media companies, it is likely that they will ask the Supreme Court to intervene very soon. We should know in very short order, in other words, whether the Supreme Court intends to write social media out of the First Amendment.”