Is There a Female Bloc on the U.S. Supreme Court?

For several decades commentators have referred to the United States Supreme Court as being divided into liberal and conservative blocs. Now, suddenly, it looks like there may be male and female blocs as well.

(Since a “bloc” normally has to have at least three members, the possibility of a female bloc came into existence only with the 2010 appointment of Justice Elena Kagan.)

In the Court’s recent decision in Blueford v. Arkansas, the court decided by a vote of 6-3 that the Constitution’s Double Jeopardy Clause did not prevent the State of Arkansas from retrying the petitioner Bluefield on capital murder charges.

Blueford was accused of killing his girlfriend’s young child and was indicted for capital murder. During his trial, the Arkansas jury was instructed to consider also the lesser included offenses of first-degree murder, manslaughter, and negligent homicide. Ultimately, the jury was unable to reach a verdict and it reported to the trial judge that it was deadlocked on the manslaughter charge. The jurors also stated that they had voted unanimously against Blueford’s guilt for the capital murder and first-degree murder charges and did not vote on negligent homicide.

In response, the trial judge declared a mistrial. When the state chose to retry Blueford, his lawyers moved to dismiss the capital and first-degree murder charges, based on double jeopardy considerations. The trial judge denied the motion, and the Arkansas Supreme Court agreed that double jeopardy had not attached.

Having granted cert., the United States Supreme Court affirmed the decision of the Arkansas Supreme Court. By a vote of 6-3, the court held that double jeopardy does not bar retrying Petitioner for capital and first-degree murder since the jury had not made a final resolution of the charges in the initial trial. Chief Justice John Roberts delivered the opinion, joined by male Justices Scalia, Kennedy, Thomas, Breyer, and Alito. Female Justice Sotomayor filed a dissent, joined by Justices Ginsburg and Kagan.

Whether or not gender played a role in the 6-3 split is an interesting question, but has not yet been addressed by commentators. Of course, one case does not establish a pattern, but it will be interesting to see if the pattern in Blueford v. Arkansas repeats itself.

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SCOTUS Decides Blueford, Declines Opportunity to Tighten Up Double Jeopardy “Manifest Necessity” Rule

On some apparently flimsy evidence of intent to kill, the State of Arkansas prosecuted Alex Blueford for the capital murder of his girlfriend’s one-year-old son. After deliberating for some time, the jury reported that it had unanimously voted to acquit on both capital murder and a lesser-included murder charge, but was deadlocked on another lesser-included offense, manslaughter. The judge sent the jurors back to deliberate further. Meanwhile, Blueford requested that the jury be given a new verdict form on which it could enter a partial verdict of acquittal on the greater offenses. The judge declined and, after another half hour of fruitless deliberations, declared a mistrial.

Can Blueford now be retried in front of a new jury on the capital-murder charge? The prosecutor announced an intention to try, and Blueford predictably objected on double jeopardy grounds. Yesterday, the United States Supreme Court overruled his objections, clearing the path for a second trial. 

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Setser v. United States: Bureaucratic Sentencing on Trial in the Supreme Court, Again

While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth.  The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court.  (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions.  Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!)  The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences.  The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge.  Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

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