There are four Mondays left in June.  Four more days in which the Supreme Court is expected to announce its decisions in the 27 or so cases still out there this term.  That’s about one case per day from now till then.  We’re picturing the Justices pulling all-nighters, stacks of empty pizza boxes in the halls at 2 a.m. next to the burn bags (do they still use burn bags there?), and sleepy zombie-like clerks dropping in their tracks every now and then.

Some of those cases have to do with boring old civ pro or shipping or labor law.  But a whole bunch are about the cool stuff, criminal law.  Here are a few of the criminal cases we’re watching particularly closely:

Black v. United States
Weyrauch v. United States
Skilling v. United States

This trio of cases attack the “honest services” fraud law.  18 U.S.C. § 1346 was supposed to prevent political corruption, but Congress wrote it so sloppily that it’s become a catch-all crime for federal prosecutors.  Anyone can get charged with it, and nobody knows what it means.  The Court telegraphed its dislike of the statute during oral arguments of all three cases.  We’re going to be shocked and appalled if the statute survives the month.  (Read more of our commentary here.)  The feds also see this going the way of the dodo, as evidenced by their rush to add other charges to prominent cases after the first oral arguments in December.

Holder v. Humanitarian Law Project

This one also delves into the constitutionality of a law, this one intended to stop people from providing assistance to terrorists.  Like the honest services statute, however, 18 U.S.C. § 2339B(a)(1) is pretty darn vague.  It also seems to limit perfectly lawful speech, which would also be unconstitutional.  The feds (represented by nominee Elena Kagan) seem to want the law interpreted very broadly, to maximum effect, but during oral arguments the Supremes expressed deep problems with the statute.  It might get kicked back to the lower courts for more fine-tuning of the issues, though, rather than an outright invalidation of the law.

Dillon v. United States

There are a lot of federal inmates serving unfairly long sentences, due to the bizarre discrepancy in sentencing for crack vs. powder cocaine.  (See our latest piece on this here.)  In 2007, the Guidelines were amended a teeny bit, permitting a 2-level reduction for crack cases.  In 2008, that was made retroactive, so prisoners could get resentenced.  Dillon wanted to get resentenced.  But he wanted more than the 2-level reduction.  He wanted a departure from the Guidelines recommendation itself, as permitted by Booker.  But the feds say Booker only applies to full sentencing proceedings, not to resentencings like this — this is just an adjustment of the guideline range that should have been applied to a pre-Booker sentence.  As Scalia pointed out at oral argument, that would require the courts to essentially disregard Booker.  And given the universal loathing of the crack/powder disparity, we think a finding for Dillon would give the courts the ability to take the injustice into account and impose variance sentences more proportional to those for powder.

McDonald v. City of Ohio

A follow-up to the Heller case a couple of years ago, which said as a matter of federal law that the Second Amendment recognizes an individual right to own a gun, which predated the Constitution.  In McDonald, the issue is whether that applies equally to the states as well, or whether the states can limit or regulate the right to bear arms.  The Court seems likely to narrowly rule that the 2nd Amdt. is incorporated into the 14th, and that the right’s a fundamental one that all the states have to respect, but not get into whether this limitation or that regulation is constitutional.  Those details can be dealt with in the lower courts on remand.

Magwood v. Patterson
Holland v. Florida

Habeas cases that we admit not reading up on when they were argued.  In Magwood, the defendant already won a federal habeas petition, and got resentenced.  Now he’s got a second federal habeas, challenging the new sentence on constitutional grounds.  He could have challenged the original sentence on those same grounds.  So the issue is whether this new petition is a “second or successive” claim that has to be rejected under the AEDPA.  Just on a gut level, we don’t think the defendant’s got much of an argument here. 

Holland deals with a defendant whose habeas petition was filed too late, due to the negligence of his attorney.  The defendant wants the limitations period tolled equitably, in the interests of justice.  Florida says equitable tolling should never be allowed.  Seems like the Court’s going to allow it, but clarify when it’s available.

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Also, we’re still waiting on an important case out of New York’s Second Department, which might create a new emergency exception to the warrant requirement.  Fingers crossed.

For the record, our position on gun control is to use both hands, relax, and control your breathing. But let’s talk about the law.

Last year, the Supreme Court historically decided that the Second Amendment gives individuals a constitutional right to possess firearms. The ruling, in District of Columbia v. Heller, was that the right of the People to bear arms was an individual right (so it wasn’t limited to militias or the military), and that it was a pre-existing right (recognized by the Constitution, and not created by it). The Court said there’s room for reasonable regulation, but an outright ban is unconstitutional.

The District of Columbia, however, is not a state. The Heller decision only directly applies at the federal level, which includes D.C. Whether the same rule applies to the states hasn’t been formally decided yet. And what counts as reasonable regulation at the state level is also an open question.

Obviously, there are plenty of folks who would like these things to be decided. Some want this to remain strictly a federal issue — the Bill of Rights originally did not apply to the states, and only gradually over the years have most (but not all) of the individual rights therein been incorporated by the Fourteenth Amendment. The Second, Third and Seventh Amendments have not yet been held to apply to the states.

Others, of course, want this individual right to be incorporated by the Fourteenth Amendment’s “privileges and immunities clause.” (That clause is what gives individuals the Bill of Rights protections from governmental intrusions, at the state and local level, by virtue of their national citizenship. So it protects you from your local cops’ infringement of speech, unreasonable search and seizure, etc.)

The Circuits are split on the issue. The Ninth Circuit ruled earlier this year that the Fourteenth Amendment incorporates the Second Amendment to the state level. But the Seventh Circuit said no, it doesn’t. So it’s certainly a ripe issue for certiorari.

Any number of cases have been percolating in the system, really, to give the Supreme Court a chance to decide the issue. The NRA alone filed five cases on the issue in Illinois alone. So it hasn’t been so much a question of whether the Court would decide it, but which case it would choose to hear.

Well, this morning, the Supremes announced the case. McDonald v. Chicago (08-1521) involves pretty much the same issues as Heller. Chicago’s gun-control laws are practically identical to those D.C. had, so it really is a good case to narrowly decide whether the rule should be extended to the states. (The various court filings can be found here.)

The Court’s calendar is full for the rest of the year, so oral arguments won’t be scheduled until January at the earliest.