“Argument analysis: Debating excessive force in the pre-trial setting”

Below is the start of my SCOTUSBlog argument analysis from today:

Today, the Court heard argument in Kingsley v. Hendrickson, a case about excessive force claims raised by pre-trial detainees. The basic question is whether a subjective or objective standard should govern these claims, but the Court spent a significant amount of the argument just trying to identify the practical ramifications of this choice. At times, it seemed that the Court was trying to choose between clarifying the fundamental principles in this area and simply dispensing with the case at hand on narrow doctrinal grounds. At the end of the argument, the result seemed uncertain.

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“Argument preview: Pre-trial detainees and excessive force in jail”

Here’s the start of my SCOTUSBlog preview of Kingsley v. Hendrickson:

Kingsley v. Hendrickson will be the Court’s next word on the law of excessive force. The case focuses on the relatively narrow question of what should happen when pre-trial detainees bring excessive-force claims against jail officers, but it’s impossible for the Court to answer that question without thinking about excessive force more broadly. In short, the issue before the Court is whether excessive-force claims brought by pre-trial detainees should be governed by the standard applicable to free people on the street, or instead by a standard like the one applicable to convicted criminals in prison.

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Johnson Argument on Vagueness—and Plea Bargaining?

Today the Supreme Court held argument on whether the residual clause of the Armed Career Criminal Act is vague, not vague, or subject to a saving construction. Early on, Justice Alito asked a question that I think is at the heart of the case–namely, “whether the statute is unconstitutionally vague or whether this Court’s interpretations of the statute create the basis for a vagueness argument?” Or, as I’ve put it before, Who made a vague law vague? (For his part, Justice Alito seemed skeptical that “a statute [can] be vague simply because this Court messes it up.”)

In this post, I will set aside the main vagueness debate to highlight a surprising aspect of the argument: the Chief Justice’s concern about prosecutorial overreaching during plea bargaining. This issue is becoming a theme for the Chief—and could have important implications.

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The Irony of Justice Stevens’s Immunity Amendment

Justice Stevens is one of the most famous and persistent critics of the Supreme Court’s broad view of state sovereign immunity. So it was no surprise when his 2014 book Six Amendments proposed a constitutional amendment on this subject. Yet there is something quite surprising about Stevens’s proposal: if read according to its terms, it might not have any significant effect at all. Exploring this possibility turns out to be an interesting way of testing our intuitions about text and purpose in this area.

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An Anti-Agency Mood?

We’re near the end of March, the month of basketball madness, and it seems like a distinctively anti-agency mood has taken hold at the Supreme Court. This assertion is both more and less than it may appear. It is more because the mood I have in mind has arguably been building up for several years. And it is less because a mood can pass uneventfully, without prompting a major decision. Still, as March Madness wraps up, it seems a good time to take stock of recent events.

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Narrowing During Oral Argument in Caulkett

On Tuesday, the Supreme Court heard argument in Bank of America, N.A. v. Caulkett, which substantially concerned the viability of the 1992 precedent Dewsnup v. Timm. The resulting conversation ranged far and wide on the subject of precedent, including reflections about when to overrule and about what I’ve called personal precedent. In this post, I’ll focus on the justices’ extensive ruminations on the subject of “narrowing,” or interpreting a precedent not to apply in a situation where that precedent is best read to apply. (Many of my points stem from my recent article on the subject.)

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Justice Alito on the Constitutional Oath in American Railroads

Last week the Court decided Department of Transportation v. Association of American Railroads, which asked whether Amtrak runs afoul of the separation of powers. Of special note, Justice Alito’s concurring opinion offered some brief but thoughtful remarks on the constitutional oath of office. In Alito’s view, the oath plays an important role in identifying officers, installing them, and (most interestingly) ensuring their accountability. This is a welcome discussion, as the oath’s legal role is (in my view) seriously underrated. Below, I question and expand on Alito’s various points.

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