You've come a long way, baby. If two more Supreme Court justices leave the bench, either vertically or horizontally, over the next few months, the Court will then have the same amount of justices it had in its opening session at New York City's Royal Exchange Building almost exactly 216 years ago. That's the fewest we've ever had; the most is ten. We've had nine since 1869. So there's been some talk of using Scalia's death as a reason to cut down on the number of justices on the court.
If you're charged with a crime in Florida, unless it's first degree murder, you get a jury of six. That may or may not be a good idea - the jury research indicates it probably isn't - but it definitely works against the defendant. After all, it wasn't Six Angry Men, was it? The research shows that the more people on the jury, the less likely a conviction. It depends on who's on the jury, too. Juries are about 20% less likely to convict a defendant if there's a black on the jury, even if it's only one. The chances of having a black on the jury is substantially greater if you have twelve jurors instead of six.
And the chances of having three women Supreme Court justices is much greater if there are nine of them than if there are seven.
When the Supreme Court decided Planned Parenthood v. Casey - the decision which affirmed Roe v. Wade, but said that there could be reasonable restrictions on abortion as long as it did not "unduly burden" the right to one - Sandra Day O'Connor was the only woman on the Court. She was a conservative, but she signed on with the majority.
There were three women on the bench on Wednesday morning to hear the oral argument in Whole Woman's Health v. Hellerstedt. The case involves Texas' new law outlining restrictions on abortion. The three women weren't conservatives. And they spent most of the hour of argument beating up the Texas Solicitor General. Dahlia Lithwick, one of my favorite Supreme Court reporters, has a nice piece on it in Slate, if you're so inclined.
Johnny gets his gun. Speaking of Supreme Court arguments, Clarence Thomas asked a question in one the other day, and I won a decision in the 8th District yesterday. Don't pay attention to the wag who suggests that those events happen with the same frequency. But Thomas' question and my case were on the same subject matter, so let's talk about it.
First, in the It's All About Me category, I was representing a guy who'd been convicted of trafficking in marijuana, a 4th degree felony, back in 1987. He'd had nothing more than a traffic ticket since. He'd gone to school, been a chef at the Cleveland Clinic for the past five years, and wanted to get a job as a security guard. One problem: he needs to be able to carry a gun for the job, and his 1987 conviction disqualifies him from owning one. So he applied for relief from that disability.
The State opposed it, because it doesn't think anybody should have guns. Neither did the judge, a former prosecutor. After asking questions at the hearing like whether my client would be able to get a job that didn't require him to get a gun, she wrote an opinion which denied the request, without giving any reason for doing so. It was an easy win; just a few months earlier, the court handed down State v. Dozanti, reversing a denial on the same grounds.
So what's that have to do with Thomas? I'd made a constitutional argument in my case: the Supreme Court held in DC v. Heller and McDonald v. Chicago that I have an individual constitutional right to own a gun. The State cannot deny me that right unless they can show a compelling state interest in doing so. A 27-year-old conviction of a 4th degree felony drug case is not a compelling state interest.
Thomas' comment came in Voisine v. US, a case involving the Federal law which bars people who are convicted of domestic violence from owning a gun. Thomas' questions were to the point: ""Can you give me another area [of law] where a misdemeanor violation suspends a constitutional right?" And he went on, analogizing the case to a publisher who'd recklessly published pictures of minors; would anybody dream that prohibiting him from ever publishing anything again was an option?
I, along with some other people, overestimated the effect of Heller and McDonald. Part of it was that the Court lagged well behind popular sentiment; by the time those decisions came down, almost all of the states had passed conceal-carry laws. There wasn't much left to do. The other part was that the courts were very reluctant to go beyond what those decisions held, which was that a person had a right to have a gun in his home. Just a few months ago, the Court refused certiorari in a case where an assault weapon ban had been upheld. And Voisine came up on a different issue; the Court had specifically declined to take up the 2nd Amendment argument.
Since it hasn't gone very far up to now, I'm not sure I see any likelihood of the 2nd Amendment argument progressing further, with its champion, Scalia, gone. Thomas appears intent up taking up Scalia's sword, so we'll see what happens.