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In a speech last night, retired Supreme Court Justice John Paul Stevens made clear his displeasure with the Court’s recent decision in Connick v. Thompson and urged congressional action to hold prosecutors clearly liable for the civil rights violations of their underlings.

Stevens highlighted what he said were the “shocking facts” of the case, which pointed to prosecutorial misconduct well beyond a single act — including concealment of blood evidence and of conflicting police reports.

Stevens said Scalia [in his concurring opinion] had “either overlooked or chosen to ignore the fact that bad faith, knowing violations may be caused by improper supervision.”

Justice Stevens takes quite a swipe at the Supreme Court’s recent, awful 5-4 decision on (lack of) municipal liability for prosecutor’s Brady violations.

(Source: legaltimes.typepad.com)

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The Mother Of All Supreme Court Sessions

Monday at the Supreme Court was large.

** The Court granted certiorari in 11 cases, including major cases about the constitutionality of the FCC indecency rules and warrantless GPS tracking. 

** Also among the grants was National Meat Association v. Harris, in which the Court also accepted an amicus brief from—get ready for it—the American Association of Swine Veterinarians.

** A tasty duel between Roberts, C.J. and Kagan, J. over the constitutionality of the Arizona matching funds campaign-finance scheme. (Added bonus: First Amendment wins.)

** Per Scalia, J., violent video-games for all. (First Amendment wins again.)

** Not one, but two—TWO! (2!)—major opinions on personal jurisdiction.

But the true highlight was Justice Scalia’s dissent from the denial of certiorari in a series of cases arising under the Armed Career Criminal Act.

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A Tale of Two Rehnquists

In her latest column, the peerless Linda Greenhouse describes a recent Supreme Court decision — in which Chief Justice Roberts joined 3 other dissenters (Scalia, Thomas, and Alito, JJ.) in opining that an interrogee’s age is irrelevant to determining whether he was in “custody” (and thus entitled to Miranda warnings). Greenhouse suspects that the implausibility of this position — does a 9 year-old really process the custodial environment in the same way as a 49 year-old? — reflects a broader frustration with Miranda.

Then, a parting shot:

The young Associate Justice Rehnquist, for whom the young John Roberts clerked, had been perhaps Miranda’s most outspoken opponent on the federal bench, whittling away at the precedent when he could and obviously biding his time until he could bury it entirely.

But by late in his career, Chief Justice Rehnquist had bigger goals in mind, limiting his battles to those that served what he deemed higher institutional needs like preserving the Supreme Court’s prerogative, vis-a-vis Congress, to “say what the law is.” The decision by his protégé and successor to vote in dissent in the new Miranda case has reinforced my belief that Chief Justice Roberts clerked for the wrong Rehnquist.

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Criminal Procedure
Miranda