Archive for the ‘The Breyer Scale’ Category

SCOTUS LibCons Range

Please answer each question in the comments of either this post, our twitter account (@citizenscotus), or our Facebook page. Once you’ve posted your answer, Brett will tell your Justice as a reply. Please do not feel obligated to provide context for your answer, as a simple yes, no, or a, b, & c will suffice. Also, while your surrounding experience is certainly nice to know, the key with these questions is how you would react in context, so even if you like curdled milk chicken, the key is that recipe is gross. These answers are for entertainment only, and should not be used to figure out which cases you should be cagey about during your eventual Senate Confirmation hearings.

1. You are a Justice on the Supreme Court. A case has come before you asking to overturn Citizens United on grounds that the first decision was wrong. It is split 4-4. Do you cast the vote to overturn the law?

2. Same question as above, but it’s 8-0 in favor of keeping Citizens United as is. Do you cast the same vote?

3. You are playing a board game with a child that you like. The rules of the game require you to take an action that would win the game and likely upset the child, or you could ignore the rules and let the child win. Do you change the rules?

4. You are a Justice on the Supreme Court. A State defendant sentenced to death is appealing his decision on grounds that a procedural issue (an issue that went toward how the trial was conducted, and not whether the person was guilty/not guilty) was denied at his lower trial. All previous decisions have said the procedural issue was denied and that a rule was broken, but that it would not have affected the outcome. Assuming that is true, would you overturn the conviction?

5. You are making dinner for someone you care about and you are trying an international recipe for a meal you’ve never eaten before. The recipe is from an Anthony Bourdain cookbook. The recipe (made for 2 people) features chicken and asks you to include 3 cups of grapefruit juice and 2 spoonfuls of whole milk. Do you follow the recipe as is?

6. If no, do you remove an ingredient, add less of an ingredient, or make something different? If yes, and the recipe is bad, who do you blame?

7. Congress passes a law that gives everyone amnesty for low level State drug crimes. This law is challenged by only three States for infringing on State rights, even though it would free thousands of incarcerated minorities and 47 States prefer it. Assuming all of that is true, would you vote to strike the law?

8. You are a Justice on the Supreme Court and you are asked to decide whether the President can ban trans people from the military. Which is the best statement on how you would vote?
A. President can never do this.
B. President can always do this even if it the only stated reason is trans people are a distraction.
C. President could do this if the only stated reason is there is a cost for trans military members that is above and beyond on-trans military members. The cost a fraction of the military budget but everyone agrees it is there.

9. You are going to the movies with 6 friends. Three friends, all people you like a lot, want to see the new Fast and Furious movie. Two other friends, including your significant other and a person you don’t like, want to see a 2.5 hour indie movie that may win an academy award. They cannot decide and ask you to buy the first ticket, and they will all see whatever you buy. Which ticket do you buy?
A. Fast and the Furious
B. The indie film
C. Something else that only you want to see.

10. A class action lawsuit has been filed against a company for abusive practices in student loan debt collection. This lawsuit will likely assist past and future graduates manage student loan debt. The plaintiffs filed their lawsuit, but did not serve the defendant with the Complaint within 120 days as required by the Federal Civil Rules. The lower court dismissed plaintiff’s case even though the Complaint was served 15 days later and the defendant knew the case had begun. In addition, if the case is dismissed now, it cannot be refilled due to Statute of Limitations concerns. Assuming all that is true, do you vote to dismiss the case?



For every case in the podcast and the Fantasy League, we will provide a summary with important issues and what to worry about.

WHAT HAPPENED: In 2002, the Supreme Court held that States could not sentence a defendant to the death penalty if it was proven that defendant possessed intellectual disabilities.  The Court did not set a standard for what qualifies as intellectual disabilities and left that decision to individual States.
WHY IS THIS BEFORE THE SUPREME COURT: Texas uses a standard that is not just out-of-date, but it’s so out-of-date that the agency that created the standard has since disavowed it for being out-of-date.  The Defendant in this case qualifies did not qualify under this standard, but presumably could qualify for a standard that is more in tune with modern practices.
WHAT ARE THE RAMIFICATIONS: There are three possible outcomes, with a modicum of fear-mongering sprinkled in.
(1) The Court does nothing and allows States to make whatever standards they want under this Rule.  Without a floor, States could make the standard much higher and execute whomever they please.
(2)  The Court refuses to set a national standard, but holds that picking a standard that is so antiquated that the people who made it publicly denounce their findings is not permitted.  With no definitive standard, Texas picks a new standard that hasn’t been disavowed by its creator and we do this throughout infinity.
(3)  The Court not only strikes the Texas standard, but also sets a requirement that all States must meet, thus substituting its judgment (which could be no more than five justices), for that of all fifty States.  States with a lower standard are now required to redo their standards via legislative action, which at very least presses pause on the death penalty in more than a few jurisdictions.
ROOT FOR option 1 (Texas) if a proponent of executing people with a mental handicap.
ROOT FOR option 2 (Moore) if you are a proponent of stopping the execution of this particular defendant, but probably no one else.
ROOT FOR option 3 (Moore) if you are a proponent of no executions for people with a mental handicap, and/or the death penalty in general.

PREDICTION:  Option 2 by a vote of 5-3

Gavel bones 2

The Fifth Amendment expressly mentions the possibility of the government putting someone “in jeopardy of life” and being “deprived of life,” clear references to the possibility that the death penalty is a possible sentence. But there is a growing movement that believes that the death penalty is unconstitutional “in and of itself.” Among the multitude espousing this position is Justice Breyer, who announced his position in his dissent in Glossip v. Gross, in which Justice Ginsburg joined. The question of whether the Constitution can prohibit something it contemplates is examined by Joseph Blocher in the Northwestern University Law Review. Hat tip to the Sentencing Law and Policy Blog.


The Breyer Scale

Posted: January 18, 2016 by beguide in Death Penalty, The Breyer Scale

Periodically, we will look at the current state of abolishing the Death Penalty in the Supreme Court.  Last term, Justice Breyer advocated for declaring the Death Penalty unconstitutional in a dissent joined by Justice Ginsberg in Glossip v. Gross.  Following the Hurst v. Florida decision the Breyer Scale stands as follows.

9 Justices Support Abolishing the Death Penalty:   The Full Breyer.

8 Justices Support Abolishing the Death Penalty:   The Cheese Stands Alone.

7 Justices Support Abolishing the Death Penalty:  Thomas, Scalia, or Alito has Retired.

6 Justices Support Abolishing the Death Penalty: The Comfortable Liberal Majority.

5 Justices Support Abolishing the Death Penalty: The Slim Liberal Majority.

4 Justices Support Abolishing the Death Penalty: Somebody Pissed Off Kennedy.

3 Justices Support Abolishing the Death Penalty:  Now We’re Getting Somewhere

2 Justices Support Abolishing the Death Penalty: Breyer on a Loveseat.

Hurst v Florida moved the Breyer Scale very little, as the Justices dealt only with the procedure of administering the Death Penalty and not anything more substantive.  One could also argue that having the jury and the judge work together on making the decision could help the defendant, although in practice that is unlikely.  Breyer himself wrote a concurrence that served only to vaguely affirm his disagreement with the current Court’s position on the Death Penalty.  No other justice joined that concurrence.


1 Justice Supports Abolishing the Death Penalty: The Lone Breyer.

0 Justices Support Abolishing the Death Penalty: Breyer has retired.