The Exceptional Circumstances of \u3cem\u3eJohnson v. United States\u3c/em\u3e

Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Since Johnson was decided six months ago, courts have been sorting out which of the currently incarcerated defendants who were sentenced under ACCA’s residual clause may be resentenced. Determining who can be resentenced in light of Johnson requires courts to answer several questions. For example, does the rule in Johnson apply retroactively to convictions that have already become final? And can prisoners who have already filed one petition for postconviction review—review that occurs after a defendant’s conviction has become final— file another, successive petition for postconviction review based on Johnson? This second question has divided the courts of appeals. It also requires the Supreme Court’s immediate and exceptional attention. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a prisoner may file a successive petition for postconviction review only when a court of appeals panel certifies that the petition involves “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” Less than six months after Johnson, over half the courts of appeals disagree about whether the Supreme Court has “made” Johnson retroactive and thus whether a prisoner may file a successive petition for postconviction review based on Johnson

Inventing Equal Sovereignty

The Supreme Court’s 2013 decision in Shelby County v. Holder relied on the “fundamental principle” and “historic tradition” of equal sovereignty to hold one of the Voting Rights Act’s key provisions unconstitutional. Yet almost three years after Shelby County, and despite a recent wave of equal sovereignty challenges to major federal programs, the equal sovereignty principle remains largely unexamined. This Article seeks to provide some clarity—both to establish the contours of the equal sovereignty doctrine and to evaluate whether it is a sound rule of constitutional federalism. The principle of equal sovereignty, as initially articulated by courts and subsequently explained by Shelby County, is an invented tradition that courts have used to justify independent determinations about federalism. Equal sovereignty was initially invented to address the constitutional challenges posed by the admission of new states. Conditions on the admission of new states sometimes diverged from then-common understandings about the proper balance between federal and state authority. And courts relied on appeals to equal sovereignty to ward off these challenges and adhere to contemporary rules about the scope of Congress’s delegated powers and the spheres in which the states were sovereign. Shelby County similarly used equal sovereignty to justify an independent claim about the states’ proper role in the federal system— that the states’ dignity entitles them to be viewed and treated as morally wellbehaving institutions. Critically analyzing how courts have used the equal sovereignty principle reveals equal sovereignty for what it is—a set of arguments about the states’ proper role in the federal system—and allows us to engage with these arguments as such. While some early state admissions cases represent sensible contemporary efforts to balance competing principles of structure, Shelby County’s claim about federalism rests on highly questionable ideas related to state dignity

Judge Gorsuch and \u3cem\u3eJohnson\u3c/em\u3e Resentencing (This is Not a Joke)

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are. Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law. While there is much to like about Prost—it is well written, clearly reasoned, and adopts an administrable rule—the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts

Antiracist Remedial Approaches in Judge Gregory’s Jurisprudence

This piece uses the idea of antiracism to highlight parallels between school desegregation cases and cases concerning errors in the criminal justice system. There remain stark, pervasive disparities in both school composition and the criminal justice system. Yet even though judicial remedies are an integral part of rooting out systemic inequality and the vestiges of discrimination, courts have been reticent to use the tools at their disposal to adopt proactive remedial approaches to address these disparities. This piece uses two examples from Judge Roger Gregory’s jurisprudence to illustrate how an antiracist approach to judicial remedies might work

The Exceptional Circumstances of \u3cem\u3eJohnson v. United States\u3c/em\u3e

Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Since Johnson was decided six months ago, courts have been sorting out which of the currently incarcerated defendants who were sentenced under ACCA’s residual clause may be resentenced. Determining who can be resentenced in light of Johnson requires courts to answer several questions. For example, does the rule in Johnson apply retroactively to convictions that have already become final? And can prisoners who have already filed one petition for postconviction review—review that occurs after a defendant’s conviction has become final— file another, successive petition for postconviction review based on Johnson? This second question has divided the courts of appeals. It also requires the Supreme Court’s immediate and exceptional attention. Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a prisoner may file a successive petition for postconviction review only when a court of appeals panel certifies that the petition involves “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” Less than six months after Johnson, over half the courts of appeals disagree about whether the Supreme Court has “made” Johnson retroactive and thus whether a prisoner may file a successive petition for postconviction review based on Johnson

The Myth of the Great Writ

Habeas corpus is known as the “Great Writ” because it supposedly protects individual liberty against government overreach and guards against wrongful detentions. This idea shapes habeas doctrine, federal courts theories, and habeas-reform proposals. It is also incomplete. While the writ has sometimes protected individual liberty, it has also served as a vehicle for the legitimation of excesses of governmental power. A more complete picture of the writ emerges when one considers traditionally neglected areas of public law that are often treated as distinct—the law of slavery and freedom, Native American affairs, and immigration. There, habeas has empowered abusive exercises of government authority rather than just constraining them. Accurate histories of the writ—and accurate stories about the writ—matter. The myth of habeas was one device that courts used to fold the writ into the legal apparatus of American colonialism and racial subordination. Dispelling that myth and developing a more complete picture of habeas can provide a new lens through which to evaluate habeas-reform proposals and avoid replicating the errors of the past. Understanding the complex and sometimes internally contradictory functions of habeas illuminates the dynamic relationship between judicial remedies and government power. And these usages of habeas show how law and legal processes, including celebrated instruments such as habeas, can and have become tools of racial subordination and colonialism. Accurate histories of the writ—and accurate stories about the writ—matter. The myth of habeas was one device that courts used to fold the writ into the legal apparatus of American colonialism and racial subordination. Dispelling that myth and developing a more complete picture of habeas can provide a new lens through which to evaluate habeas-reform proposals and avoid replicating the errors of the past. Understanding the complex and sometimes internally contradictory functions of habeas illuminates the dynamic relationship between judicial remedies and government power. And these usages of habeas show how law and legal processes, including celebrated instruments such as habeas, can and have become tools of racial subordination and colonialism

Disparate Discrimination

This Article explains and analyzes a recent trend in the Supreme Court’s cases regarding unintentional discrimination, where the argument is that a law has the effect of producing a disadvantage on members of a particular group. In religious discrimination cases, the Court has held that a law is presumptively unconstitutional if the law results in a comparable secular activity being treated more favorably than religious activity. Yet in racial discrimination cases, the Court has said the mere fact that a law more severely disadvantages racial minorities as a group does not suffice to establish unlawful discrimination. The two tracks for unintentional discrimination claims can be understood through the lens of political process theory. One part of political process theory maintains that courts should be skeptical of laws that negatively affect discrete and insular minorities who may be politically powerless and face prejudice. One reason the Court more carefully scrutinizes laws that burden conservative, (often) Christian religious groups may be that the Court views those groups as socially powerless because their views no longer command majority support and because their views are not treated with the respect the Court thinks they deserve. And the Court’s decisions have the effect of redistributing power to or reinforcing power in the groups the Court believes to be socially powerless. Identifying the jurisprudential worldview that may plausibly drive these trends helps to identify the potential implications and assess the merits of the new doctrinal approach that the Court has taken in (some) antidiscrimination cases. The Court’s new approach to religious discrimination claims has some virtues; in particular, the Court is probably right to consider facts from the private sphere, such as a group’s economic or social power, in deciding the appropriate scope of judicial review. But the selectivity with which the Court has applied this approach, as well as the Court’s odd assessments of various groups’ power, has resulted in a problematic jurisprudence of conservative victimization that judicially protects backlash against advances in equality and antidiscrimination law

Judge Gorsuch and \u3cem\u3eJohnson\u3c/em\u3e Resentencing (This is Not a Joke)

Jan Crawford has reported that President Donald Trump is strongly considering appointing Judge Neil Gorsuch of the United States Court of Appeals for the Tenth Circuit to the U.S. Supreme Court. I do not know Judge Gorsuch, but I do know his opinion in Prost v. Anderson, which is a rather wonky case on a somewhat technical area of federal habeas law. Prost provides an interesting insight into Judge Gorsuch’s jurisprudence. The case concerns an issue on which the courts of appeals disagree, so it provides a nice glimpse into how Judge Gorsuch might address matters that are reasonably susceptible to different resolution, as many of the Supreme Court’s cases are. Prost illustrates how Judge Gorsuch will balance competing considerations of fairness and administrability in criminal law. While there is much to like about Prost—it is well written, clearly reasoned, and adopts an administrable rule—the opinion also raises some concerns. The opinion overvalues proceduralism relative to substantive rights in a way that will have the effect of eroding litigants’ access to courts

Unduly Burdening Women’s Health: How Lower Courts Are Undermining Whole Woman’s Health v. Hellerstedt

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy. The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking the Court to do. If Texas were correct in Hellerstedt that the challenged abortion restrictions were valid, the right to decide to end a pregnancy would have amounted to little more than a fiction. The Texas restrictions at issue in Hellerstedt required doctors providing abortions to have admitting privileges at hospitals within thirty miles of where the doctor performed abortions and required facilities providing abortions to comply with the litany of restrictions applicable to ambulatory surgical centers. There was no evidence that either of the restrictions made abortion safer, and their combined effect was to reduce the number of clinics in the state of Texas from over forty to seven, all of which would have been concentrated in the Dallas/Fort Worth, Houston, Austin, and San Antonio metropolitan regions. If states could enact such severe restrictions without having to establish that the restrictions actually serve a valid purpose, it is not hard to imagine that the right to decide to end a pregnancy would have become a right in name only

“Hey Stephen”

A Review of The Authority of the Court and the Peril of Politics. By Stephen Breyer