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Scotus Roundup May 19, 2008

Posted by Sobek in Law.

1. U.S. v. Ressam. A terrorist named Ressam was caught by customs officials trying to sneak a bomb into Washington state, to use to blow up LAX. He was convicted of making a false statement to customs officials (specifically, lying about his name and nationality) and carrying an explosive “during” the commission of the first crime. The Ninth Circuit reversed the second conviction, holding that the “carrying an explosive” count had to be related to the “false statement” count. SCOTUS reversed the Ninth Circuit, saying that the “during” only refers to a temporal connection, not to the relatedness of the offenses.

Eight out of nine justices voted to reverse the Ninth Circuit, with Breyer dissenting. Thomas and Scalia concurred separately.

2. U.S. v. Williams. A Secret Service agent went to an on-line forum for pedophiles and struck up a conversation with Williams, who offered to exchange pornographic images of children. The feds got a warrant, grabbed Williams’ home computers, and found at least 22 sexually explicit pictures of minors, some of it sadomasochistic. Williams challeged his conviction claiming the federal statute was an unconstitutional violation of the First Amendment. The district court disagreed with Williams, the Eleventh Circuit reversed, and SCOTUS reversed the Eleventh Circuit.

Scalia wrote the majority opinion, with six other justices concurring. Souter and Ginsburg dissented.

3. Dept. of Revenue of Kentucky v. Davis. Kentucky exempts its own state bonds from taxation, but not bonds issued by other states. Davis sued, saying the differential treatment is unconstitutional under the Dormant Commerce Clause. The Kentucky Supreme Court agreed with Davis. The U.S. Supreme Court reversed.

Souter wrote a highly fractured opinion that will give tax lawyers nightmares.

4. U.S. v. Rodriquez. Washington state convicted Defendant of several drug trafficking crimes over the years. The feds caught him and tried him for being a felon in possession of a firearm. The feds also sought to add a 15-year minimum sentence under the Armed Career Criminal Act, which applies where the previous offenses carry certain minimum sentences. The question was whether a certain prior drug conviction (generally with a five-year sentence) should count as a ten-year sentence under Washington law because it was a second or third offense.

The Supreme Court held that the prior conviction should be considered a ten-year sentence, so the Defendant was subject to the Armed Career Criminal Act.

Conclusion: Rough day for scum bags today. Plus a boring tax case.


1. geoff - May 19, 2008

Ahhh. Now we can threadjack this properly.

Though I do appreciate Sobek and Michael keeping us current on legal stuff.

2. Muslihoon - May 19, 2008

I concur. I feel much smarter even if I don’t understand what they’re saying.

3. Sobek - May 19, 2008

I dumbed things down considerably. Especially number 3, because it’s a tax case (not really — it’s a dormant commerce clause case in an underlying tax matter).

4. daveintexas - May 19, 2008

Souter wrote a highly fractured opinion that will give tax lawyers nightmares.

You say that like it’s a bad thing.

5. Sobek - May 19, 2008

The Ressam case is a good result, but probably won’t have far-ranging implications. The short-term effect is that one terrorist will go to jail for longer than he otherwise would have, and immigrations folks have a bit more power in enforcing the border.

But the case was about interpreting a statute. If the Court had ruled the other way, Congress could easily have amended the statute to expand the scope a bit. And on the other hand, Congress can still amend the statute to restrict the scope if it doesn’t like today’s ruling.

The Supreme Court was not looking at big picture constitutional issues.

6. Sobek - May 19, 2008

“You say that like it’s a bad thing.”

Hmm, let me re-phrase that.

Souter wrote a highly fractured opinion that leaves lower courts with no clear answers on the state of the law, that will give tax-payers nightmares, and will make tax lawyers who have to argue about it extremely wealthy.

7. Michael - May 19, 2008

Dormant Commerce Clause

That made me laugh. Just thought you should know that someone enjoyed that joke.

8. Muslihoon - May 19, 2008

May I hijack this issue to ask questions about another high-profile legal event, namely the recent decision by the California Supreme Court?

1a. According to my understanding of US law, US law does not permit ex post facto laws. That is, if something is not illegal and then is made illegal, those who engaged in it prior to it becoming illegal cannot be punished. So, this means, if I understand it correctly, that all same-sex marriages contracted prior to the amendment in the California state constitution (if such an amendment is passed) will have to be valid. Is this understanding of mine correct?

1b. If a same-sex couple got married in California and moved to, say, Utah or Texas, would Utah/Texas/etc. have to recognize the marriage as valid?

2. If same-sex marriage is made legal, what are the chances that polygamy can or will be made legal too?

9. Michael - May 19, 2008

1a. No. The ex post facto principal does not work backwards, i.e., an act that was illegal when committed is not absolved if it subsequently becomes legal, although this would probably be a consideration in applications for pardon or parole. So, for example, illegal distilleries during Prohibition did not become retroactively legal when Prohibition was repealed.

1b. Maybe no — Congress passed the Defense of Marriage Act to prevent this. There is some question as to whether this legislation can effectively govern the “Full Faith and Credit” clause of the Constitution (Ariticle IV, Section 1) should SCOTUS have a contrary opinion. I’m guessing that SCOTUS will not attempt to impose the recognition of California (or Massachusetts) gay marriages on other states.

2. Zip.

10. Muslihoon - May 19, 2008

But didn’t the CA Supreme Court essentially say that the same-sex marriages contracted were valid, and that supposed statutory limits were invalid? I guess I’m confused what CA is trying to say. According to its ruling, were the marriages legal when contracted or still not legal?

Thanks for the info. I appreciate it.

11. BrewFan - May 19, 2008

I would point out that thirty-five years ago (about when I graduated from high school) if question 2 was worded what are the chances that same sex marriage can or will be made legal too? the answer would have been ‘zip’.

12. Sobek - May 19, 2008

I think Musli’s 1a. is about marriages that are legal at the time (now that SCOCa has made them so) that become illegal in the future, should the Ca constitution be amended.

Ex post facto is about criminal laws. No one has criminalized gay marriage, or proposed to do so. Invalidating a government act is not the same thing as criminalizing behavior.

1b. Ditto about the DOMA. My recollection of the full faith and credit clause is that courts generally apply it to judicial determinations, not to statutes. For example, if I am entitled to a retirement benefit of $50,000.00 per year in Nevada, by state law, and then I move to Mississippi, which only mandates $35,000.00 per year, I can’t sue to force Mississippi to pay me $50,000.00.

But if I get a judgment in a Nevada court and try to enforce it in Mississippi, the Full Faith and Credit Clause will force Mississippi to enforce it (with some exceptions, like fraud or lack of personal jurisdiction).

2. Zip, at least for now. Gay marriage advocates emphatically deny that legalizing gay marriage will lead to other things, like polygamy, incestuous marriage, or underage marriages. But that may change if they win the gay marriage battle — do you honestly expect the ACLU to remain consistent on the point? Indeed, if the FLDS mothers who want their kids back approach the ACLU, they will likely find very sympathetic ears.

Of course, that still means years and years of lobbying, strategizing and litigation. And nothing in the California case applies of its own force to gay marriage. And polygamy has not achieved media saturation like homosexuality has, so “progressive” judges are less likely to want to read the California case so expansively.

13. Michael - May 19, 2008

thirty-five years ago . . . the answer would have been ‘zip’.

So, thirty-five years from now, it’s possible that Mrs. Sobek could have two husbands?


Oh wait. I’ll be dead.


14. Muslihoon - May 19, 2008

Ah, thank you for that distinction between criminal law and laws affecting government acts (would that be called “statutory”?).

So, there’s a difference between an invalid marriage (polygamous, incestuous, same-sex) and a criminal marriage (polygamous, incestuous); and because no law has been passed that criminalizes same-sex marriage, it is simply invalid but not criminal, correct? The statutes and constitutional amendments simply state that same-sex marriages are invalid with nothing about being criminal, correct?

And thanks for your input on polygamy vis-a-vis same-sex marriage.

15. Muslihoon - May 19, 2008

Michael’s remark reminds me…the technical and more accurate term is not “polygamous” as much as it is “polygynous”. It’s mostly (if not practically exclusively) one man with many wives; I have not heard of a woman having more than one husband. Of course, if polyamorous relationships are legalized, then perhaps “polygamy” might be a better choice. And if gay people jump the polygamy bandwagon, “polygamy” would be better than having to find out whether each instance is polygynous or polyandrous or polygynandrous (for bisexuals).

16. Sobek - May 19, 2008

“…and a criminal marriage (polygamous, incestuous)…”

There’s no such thing. No state recognizes polygamous marriages. They simply don’t exist. No state recognizes incestuous marriages. You can be prosecuted for committing incest, and that’s where the ex post facto rule comes in.

“Oh wait. I’ll be dead.”

Got that right.

17. Sobek - May 19, 2008

Which, incidentally, will free up Cathy.

18. geoff - May 19, 2008

And if gay people jump the polygamy bandwagon, “polygamy” would be better than having to find out whether each instance is polygynous or polyandrous or polygynandrous (for bisexuals).

Now you’re sounding like the GLBT crowd who flooded into Nice Deb’s site. They’ve got so many variants on sex, sexual orientation, and presentation of your sex to society (e.g., acting/dressing like a male regardless of your actual sex), that it makes you dizzy.

19. Muslihoon - May 19, 2008


20. Michael - May 19, 2008

Rosetta can be my second wife. I’m OK with that.

21. kishnevi - May 19, 2008

The California Supreme Court decided on grounds that wouldn’t be applicable to polygamy/polyandry/polygyny.

The ruling can be summed up in two steps.
1) Homosexuality is an inborn characteristic, and must be treated like race, ethnicity, etc. when deciding if there is discrimination.
2) Allowing heterosexuals marriage while only offering homosexuals domestic partnerships is discriminatory.
Therefore either homosexuals must be offered marriage or heterosexuals must be offered only domestic partnerships.

Theoretically, the state could declare all existing marriages domestic partnerships, and end it there. Marriage would be a ceremony carried out by religious institutions under their own rules, with no legal effect on the status of the domestic partnership.

I suppose some men might argue that polyamory is an inborn male trait. Bill Clinton, for example. But even if that was accepted, I can’t think of any argument that would apply step 2 to polygamy.
But that probably shows only that I’m not as ingenious as some other lawyers are.

22. Michael - May 19, 2008

Homosexuality is an inborn characteristic, and must be treated like race, ethnicity, etc. when deciding if there is discrimination.

So, just google “genetics criminality” and you will see the same debate — criminal conduct in general may have a genetic component. It’s the same intellectually bankrupt debate about nature-vs.-nurture that goes on about homosexuality.

The issue is not what is “natural” (an elusive concept), but what is good.

23. BrewFan - May 19, 2008

I’m not as ingenious as some other lawyers Pharisees are.

Fixed that for you.


24. Muslihoon - May 19, 2008


25. Michael - May 19, 2008

Man, you guys are going to run off our only Jewish commenter. That means Pupster will get the job back, and he sucks at being a Jew.

You don’t want that, do you?

26. geoff - May 19, 2008

The issue is not what is “natural” (an elusive concept), but what is good.

Well, it would be if Rousseau hadn’t come along and screwed everything up. Jerk.

27. Muslihoon - May 19, 2008

“Jews” reminds me of this video:

28. Sobek - May 19, 2008

“…and he sucks at being a Jew.”

No kidding. He didn’t even try to control the media. Pupster, you’re on notice, pal.

29. kishnevi - May 19, 2008

Brewfan, I’m both a Pharisee (sort of, like every other modern Jew) and a lawyer.

So you better be careful; they let me out of the shark cage once a day.

30. Pupster - May 20, 2008

I wanna go to Floooridaaaa!

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