Day 2 Docket Watch: Separation of Powers, Death Penalty
Okay, the general media consensus is that the new term of the U.S. Supreme Court is no blockbuster (yet). But today’s arguments prove that the court’s docket includes big cases that may be flying under the radar but shouldn’t be. A quick preview:
➤➤ Gundy v. United States: This case spotlights an issue that has been dormant lately but becomes very relevant as the Trump administration dismantles the administrative state. We’re talking about the non-delegation doctrine, a sleep-inducing name for a big-deal separation of powers question: should Congress be allowed to delegate its legislative powers to the executive branch?
The vehicle for a fresh look at this doctrine is an odd one, involving a provision of the Sex Offender Registration and Notification Act that delegates to the attorney general the power to issue certain regulations under the law.
Plaintiff Herman Gundy ran afoul of the regs and his lawyer New York federal defender
Sarah Baumgartel appealed, hitting the high court with four different reasons why it should take up his appeal. But the court picked only one to granted review on: non-delegation, a clear sign that the court is ready to tackle the doctrine.
Conservative groups are not ordinarily keen on helping sex offenders, but they have piled on with amicus briefs in favor of Gundy. Liberals are on his side too. Stanford Law School profs
Jeffrey Fisher and
Pamela Karlan are on Gundy’s
brief, though Baumgartel will argue on his behalf. Deputy Solicitor General
Jeffrey Wall will argue that SORNA does not violate the non-delegation doctrine.
Why it matters: “Herman Gundy was punished for violating a law that no legislature enacted. He now stands convicted of a crime based on the attorney general’s whim. Few insults to the principles of a free society could be greater.” Cato Institute's
Ilya Shapiro wrote in an
amicus brief.
➤➤ Madison v. Alabama: This is the case that will remind everyone how important the departure of Justice
Anthony Kennedy in July was. Kennedy was not a death penalty abolitionist, but he did chip away at it by excluding certain categories of defendants from capital punishment.
Vernon Madison’s case could fit right in with Kennedy’s approach to the death penalty, but without him on the bench, the outcome is iffy. Madison killed a police officer in Alabama in 1985 and was sentenced to death. But after several strokes and other medical problems, Madison has severe dementia and cannot remember his crime.
His appeals have gone up and down the court system, including the Supreme Court which ruled against him in a per curiam decision in 2017. But the circumstances for his case’s return visit today are different, invoking the Eighth Amendment rather than AEDPA. It could be a test of the “evolving standards of decency” rationale in Ford v. Wainwright, the key precedent in Madison’s case dating back to 1986.
Bryan Stevenson, the famed author, TED Talk speaker and executive director of the Equal Justice Initiative, will argue for Madison. It will be Stevenson’s fourth Supreme Court argument, and his first since 2011. Representing
Alabama is the state’s deputy attorney general
Thomas Govan Jr.
Bottom line: “Executing Mr. Madison would implicate society’s and the Eighth Amendment’s aversion to grotesque and obscene punishments,” Stevenson wrote in Madison’s
brief.
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