Blog

From Justice Alito’s solo dissent in Evans v. Michigan:

The prohibition against double jeopardy “had its origin in the three common-law pleas of autrefois acquit, autrefois convict, and pardon,” which “prevented the retrial of a person who had previously been acquitted, convicted, or pardoned for the same offense.” United States v. Scott, 437 U. S. 82, 87 (1978); see Crist v. Bretz, 437 U. S. 28, 33 (1978). As the Court has previously explained, “the common-law protection against double jeopardy historically applied only to charges on which a jury had rendered a verdict.” Smith, 543 U. S., at 466 (emphasis added).1 As a result, the original understanding of the Clause, which is “hardly a matter of dispute,” Scott, supra, at 87, does not compel the Court’s conclusion that a defendant is acquitted for double jeopardy purposes whenever a judge issues a preverdict ruling that the prosecution has failed to prove a nonexistent “element” of the charged offense. Although our decisions have expanded double jeopardy protection beyond its common-law origins, see, e.g., Smith, supra, at 466–467 (acknowledging the Court’s expansion of “the common-law protection against double jeopardy”).

With this Story-footnote:

1 See also Crist, 437 U. S., at 33 (“The Fifth Amendment guarantee against double jeopardy derived from English common law, which followed . . . the relatively simple rule that a defendant has been put in jeopardy only when there has been a conviction or an acquittal—after a complete trial. . . . And it is clear that in the early years of our national history the constitutional guarantee against double jeopardy was considered to be equally limited in scope”); 3 J. Story, Commentaries on the Constitution of the United States §1781, p. 659 (1833) (“The meaning of [the Double Jeopardy Clause] is, that a party shall not be tried a second time for the same offence, after he has once been convicted, or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him. But it does not mean, that he shall not be tried for the offence a second time, if the jury have been discharged without giving any verdict . . . .” (emphasis added)); 2 M. Hale, Pleas of the Crown 246 (1778) (“It must be an acquittal upon trial either by verdict or battle”).

Alito also shifts from an original understanding approach, to look at what the “purpose” of the prohibition was.

Although our decisions have expanded double jeopardy protection beyond its common-law origins, see, e.g., Smith, supra, at 466–467 (acknowledging the Court’s expansion of “the common-law protection against double jeopardy”);Crist, supra, at 33–34, I nonetheless count it significant that the result the Court reaches today finds no support in the relevant common-law analogues that “lie at the core of the area protected by the Double Jeopardy Clause,” see Scott, 437 U. S., at 96. And given how far we have departed from the common-law principles that applied at the time of the founding, we should at least ensure that our decisions in this area serve the underlying purposes of the constitutional prohibition against double jeopardy. See id., at 95–96, 100–101. Yet today’s decision fails to advance the purposes of the Double Jeopardy Clause.

That’s interesting. If the Court is going to ignore original understanding, then at least go with original purpose. But doesn’t that negate the original move towards understanding meaning?

From arguments in McBurney v. Young:

JUSTICE SCALIA: And besides, do — do you — is it the law that — that the State of Virginia cannot do anything that’s pointless? Only the Federal Government can do stuff that’s pointless? (Laughter.)

Oregon and Louisiana are the only two states in the country where a criminal conviction can be obtained from a non-unanimous jury. In Herrera v. Oregon, the Supreme Court had already denied cert on a challenge to that practice in Oregon, post McDonald v. Chicago.

Now, the Court has denied the petition from Louisiana.

Miller v. Louisana presented the question of “Whether the Sixth Amendment right to jury trial, as applied to the States through the Fourteenth Amendment, allows a criminal conviction based on a nonunanimous jury verdict?” The Court denied the petition yesterday.

For now, the anomalous Apodaca will stand. As Miller’s petition notes:

Concurring in the judgment in Apodaca, Justice Powell reasoned that even though the Sixth Amendment requires unanimity in federal cases, the Fourteenth Amendment does not demand the same in state cases. But this reasoning cannot be squared with this Court’s recent holding in McDonald that “[t]he relationship between the Bill of Rights’ guarantees and the States must be governed by a single, neutral principle”: “incorporated Bill of Rights protections are to be enforced against the States under the Fourteenth Amendment according to the same standards that protect those personal rights against federal encroachment.” 130 S. Ct. at 3035, 3048 (internal quotation and citation omitted). . . . This Court should exercise that prerogative now. Stare decisis has limited force in this case and the constitutional right at stake is enormously important.

McDonald’s application to the incorporation of other provisions of the Bill of Rights seems to be at an end.

H/T Christian Science Monitor

The Becket Fund lists many of the briefs here.

The Congressional brief, signed by Senators Orrin G. Hatch, Daniel R. Coats, Thad Cochran, Mike Crapo, Charles Grassley, James M. Inhofe, Mitch McConnell, Pat Roberts, Richard Shelby and Congressmen Lamar Smith and Frank Wolf, the Congressional states that “Congress plainly wrote [the Religious Freedom Restoration Act or “RFRA”] to include corporations[.]” This brief was authored in part by Kevin Walsh, who has written some great posts on this topic.

Although the District Court recognized that the term “person” ordinarily encompasses corporations, companies, associations, and individuals, and further recognized that nonprofit corporations qualify for protection under RFRA, the District Court nevertheless created an exemption from RFRA’s coverage for what it described as “secular, for-profit corporations” by incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1291-92 (W.D. Okla. 2012). Congress could have carved out such a category of unprotected “persons” in RFRA itself or in a later statute, but it did not. And this judicially created carve-out is directly contrary to one of the primary reasons Congress enacted RFRA in the first place: to prevent those charged with implementing the law from picking and choosing whose exercise of religion is protected and whose is not.

The brief addresses how the court carved out exceptions for “secular, for-profit corporations.”

Rather than reach the obviously incorrect conclusion that RFRA does not extend to corporations at all, the district court created an exception from RFRA’s coverage for “secular, for-profit corporations,” incorrectly concluding that such corporations “are not ‘persons’ for purposes of the RFRA.” Hobby Lobby Stores, Inc. v. Sebelius, 870 F.Supp.2d 1278, 1288, 1291-92 (W.D. Okla. 2012). The district court reasoned that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.” Id. at 1291. But the same can be said of corporations that unquestionably are “persons” under RFRA, such as hospitals, universities, and religious orders.

…

Even though Congress did not provide for different treatment of for-profit and nonprofit employers in either RFRA or the PPACA, Defendants have created a three-tier categorization of religiously objecting employers and have subjected Plaintiffs to third-class treatment in the lowest tier. This contravenes the design of RFRA. Congress knew that a healthy respect for religious freedom as exercised by a variety of actors would call for various government responses appropriate to the circumstances. But rather than attempt to formulate different principles to govern different categories of religious liberty claimants, Congress formulated a single principle and left it to government officials and courts to apply that same principle with sensitivity to different factual circumstances.

Also, the brief wisely provides a reason why striking down the mandate under RFRA would not implicate Title VII (a concern I have heard from others).

 

In attempting to justify their failure to respect religious objections to the HHS mandate asserted by for-profit corporations, Defendants have observed that Congress has sometimes distinguished between nonprofit religious organizations and for-profit secular organizations. 78 Fed. Reg. 8456, 8462 (Feb. 6, 2013) (discussing Title VII of the Civil Rights Act of 1964). This demonstrates that Congress can distinguish between for-profit and nonprofit employers when it wishes to do so. But Congress made no such distinction in RFRA, which applies broadly and generally, subject only to displacement by later enactments that relax its reach in specific areas. Congress plainly wrote RFRA to include corporations, and neither RFRA nor the PPACA excludes for-profit corporations.

The brief does not venture into the First Amendment free exercise component of what I have called “Corporate Prayer.” Indeed, there is not a single citation to the First Amendment in the brief.

This week, the Supreme Court dropped nine opinions on us. FantasySCOTUS correctly predicted Chaidez v. US, Gunn v. Minton, Henderson v. U.S., Johnson v. Williams, Florida v. Harris, and FTC. Phoebe Putney Health System. Two of the cases we missed were awfully close. Evans v. Michigan was 47.4/52.63 and Chafin v. Chafin was 51.3/48.7. Bailey v. U.S. was 58.4/41.6, a wider margin, but still was too close to call.

Overall, this term, FantasySCOTUS has predicted 68.4% of the cases correctly. That is about our historical average.

You can view all predictions at the FantasySCOTUS Prediction Tracker.