U.S. Supreme Court – Page 52 – Marquette University Law School Faculty Blog

The Morning After: Lessons From the Wisconsin Budget Battle

Post author:Edward A. Fallone
Post published:March 11, 2011
Post category:Constitutional Interpretation Election Law First Amendment Labor & Employment Law Media & Journalism Political Processes & Rhetoric U.S. Supreme Court

At last the end game has arrived for the budget bill, after more than three weeks of deadlock in Madison. Indeed, it was obvious to everyone that the impasse could not persist, and that the only two options available were either a compromise (unlikely) or the eventual adoption of Governor Walker’s bill intact.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate. In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides. In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience.

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship.

More “Bullcoming”? The Court Courts Confusion in Confrontation

Post author:Daniel D. Blinka
Post published:March 3, 2011
Post category:Criminal Law & Process Evidence U.S. Supreme Court

In some ways I should be grateful for doctrinal train wrecks. Messy case law provides endless excuses for writing articles and blog posts as well as delivering lectures that purport to see “the way” through the swamp. Like a child’s kaleidoscope, such cases offer something different for everyone to see, and no one is clearly wrong. Yet Supreme Court opinions are not solely intended for the entertainment of academics or the bewilderment of law students and lawyers.

Of the three metaphors I used in the preceding paragraph, a “train wreck” is the most apt way to describe Michigan v. Bryant, the Supreme Court’s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment’s confrontation right. “Swamp” and “kaleidoscope” are apt, but “train wreck” best captures the real cost of confusion. Bryant not only failed to illuminate a much-rumored “dying declaration” exception to the confrontation right, it also raises considerable confusion about what constitutes the “testimonial hearsay” that is protected by the confrontation right in the first place. For the defense lawyers and prosecutors who must eat this mush (fourth metaphor) every day, you have my best wishes and these words of solace.

SCOTUS Says Judge May Consider Post-Sentencing Rehabilitation at Resentencing

Post author:Michael M. O'Hear
Post published:March 2, 2011
Post category:Criminal Law & Process Federal Criminal Law & Process Federal Sentencing U.S. Supreme Court

In a new decision earlier today, Pepper v. United States (No. 09-6822), the United States Supreme Court ruled that federal district judges may consider post-sentencing rehabilitation when a case is remanded for resentencing. This may sound like a very technical question of criminal procedure, but the facts in Pepper nicely illustrate the human dimension to the question. Pepper was convicted of meth trafficking and faced a Guidelines sentence of 97-121 months. The judge departed downward, however, and imposed a sentence of 24 months. In June 2005, the Eighth Circuit reversed and remanded for resentencing. In the interim, Pepper completed his 24 months and was released. In May 2006, the district held a resentencing hearing, at which much evidence was presented of Pepper’s successful post-sentencing rehabilitation, including completion of drug treatment, commencement of college courses, and part-time employment. Pepper’s probation officer recommended that the original sentence be reinstated, and the district judge agreed. The government appealed, and the Eighth Circuit again reversed, ruling that post-sentencing rehabiltiation was an impermissible sentencing factor. The case then bounced around inconclusively in the court system for several years before finding its way to the Supreme Court. Pepper, still free, has apparently continued to do quite well in school and work. The question now is whether he must nonetheless be returned to prison after five years in the community, which would likely wreck much of what he has accomplished for himself and his family.

In holding that post-sentencing rehabilitation is a permissible consideration at resentencing, the Court addressed a couple of notable legal questions. What is perhaps most remarkable about Pepper, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.