Today’s Action at the Supreme Court on Nondelegation, Race, Child Murder, and Confessions

Unfortunately, in its order list this morning, the Supreme Court declined to hear RMS of Georgia, LLC d/b/a Choice Refrigerants v. EPA, the nondelegation doctrine case I discussed last week. It may yet, however, take up the soon-pending petition in Pheasant v. United States, which so far as I can tell has yet to be set for a conference date but is fully briefed. Pheasant remains a very hard case for the government to defend if the nondelegation doctrine means anything at all.

Alongside the usual array of denials and other orders, the Court handled a few other items of business with comment. A 6–3 per curiam opinion reinstated the New York state conviction of Pedro Hernandez in the notorious Etan Patz case, ruling that the Second Circuit had overstepped its bounds on questions related to the admission in evidence of Hernandez’s confessions and how the jury was instructed in considering them. Legally, the case is a shot across the bow at federal courts tempted to second-guess too closely the rulings of state courts in criminal cases: “The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes strict limits on federal courts’ power to grant habeas relief to a prisoner convicted in state court. District courts and courts of appeals have sometimes chafed under these restraints, and when they have strayed too far from the modest role that AEDPA prescribes, we have summarily reversed their decisions. . . . We must do the same today.”

The cultural impact of the Patz case, especially in New York, is hard to overstate. In 1979, a six-year-old boy was allowed to walk alone to the school bus in lower Manhattan; it was the first time his parents had let him walk there alone, but even with the crime and grit of New York in the 1970s, it was still considered normal for parents to let kids that age out alone. His disappearance, unsolved for 33 years, shocked the city, led to the introduction of photos of missing children on milk cartons (Patz was the first so depicted), and inaugurated the shift away from free-range childhood. Patz was a year younger than me, and in a household where we listened to WCBS News radio every morning even before I was old enough to read the newspapers, the case was ubiquitous. (The case was followed soon in the news by the Atlanta child murders, for which Wayne Williams was convicted.)

Justice Samuel Alito, joined by Justice Clarence Thomas, dissented from the denial of cert in United States v. Carter, in which the D.C. Court of Appeals (DCCA) concluded that a cop telling a young black man to hike up his pants qualified as a seizure for Fourth Amendment purposes, even if the court could not “objectively determine” (its words) whether a seizure had taken place, because the court “must look [to the] defendant’s race.” Alito:

The proper inquiry, the court stated, was “whether an objective and reasonable person sharing the defendant’s generalized lived experiences arising out of their racial status”—that is, “sharing Mr. Carter’s racial status as a Black man”—“would have felt free to terminate the police encounter.” . . . The court then discussed scholarship that in the court’s view suggests that “Black men are more likely to comply with police demands rather than exercise their constitutional right to terminate a suspicionless police encounter.” . . . And, the court said, the officer’s request that Carter hike his pants was a seizure due to the “elevated effect” that the request “would have had on an objective and reasonable Black man in Mr. Carter’s shoes.” . . .

The DCCA appears to be committed to the test that it used in this case, and the lawfulness of that test is an important question for both doctrinal and practical reasons. Under the test, officers will need to quickly assess a person’s race, and if officers and courts must craft special rules for black persons, what about dark-skinned Latinos, other Latinos, and members of other minority groups? We have said that our Constitution is color-blind. . . . It almost never allows government actors to treat persons differently based on their race. . . . And we have rejected the proposition that the Constitution permits an individual to be treated differently based on a perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike. . . . It is dangerous to allow an individual to be treated differently based on statistics, studies, or expert testimony that purports to show that members of the racial or ethnic group to which he belongs are more likely to act in a certain way than are members of other groups. Here, the special treatment helped the individual; in other situations it will not. [Quotations and citations omitted.]

Finally, writing alone in Grayson v. United States, Alito dissented from a decision to remand a case for further review of the admission of a recording; you can almost hear Alito’s voice saying “c’mon, guys, who are we kidding here”:

Petitioner challenges the admission of a FaceTime recording that shows her offering to pay for murder. . . . The Government argues that any error was harmless. I agree. Even setting aside the FaceTime recording, a mountain of properly admitted evidence proved petitioner’s guilt. Most prominently, the evidence included a recording of a separate call petitioner made to the Federal Bureau of Investigation, in which she described the contents of the challenged FaceTime call in detail and acknowledged that she had offered to pay for murder.

The criminal world isn’t sending the Court its best.