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Justice Sotomayor's Statement in Oritz v. Breslin

Sotomayor's solo not-quite-dissental, with a shout-out to her former law clerks, is a throwback to a bygone era of substantive due process.

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Today, the Supreme Court denied certiorari in Ortiz v. Breslin. This case has been floating around for some time. It was first distributed for conference on 9/27/2021. It was rescheduled twelve times! It seems that Justice Sotomayor was likely trying to muster three more votes for cert. She was unsuccessful. Instead, she wrote a six-page statement respecting the denial of certiorari. It is not quite a dissent, but Justice Sotomayor states very clearly that she thinks the New York Court of Appeals got the case wrong.

Here is Justice Sotomayor's summary of the dispute:

In New York, criminal defendants who earn sufficient good time credits before the end of their prison sentences are entitled to conditional release. Defendants classified by the State as "level three sex offenders," however, must first assure the State that they will not reside within 1,000 feet of any school. In New York City, this is no easy task, and the difficulties of finding a compliant residence can result in defendants serving additional time in prison past the expiration of their sentences. Because petitioner Angel Ortiz was unable to identify any release address that satisfied the State's requirement, he spent over two additional years in-carcerated when he should have been at liberty. Although Ortiz's petition does not satisfy this Court's criteria for granting certiorari, I write to emphasize that New York's residential prohibition, as applied to New York City, raises serious constitutional concerns.

Justice Sotomayor explains that in New York City, it is virtually impossible for a person to live more than 1,000 feet from a school. And, she contends, the state's policy is not narrowly tailored to the density of New York City. She is exactly right. In many large cities, sex offenders are forced to live near highway overpasses and in other dangerous areas. These 1,000 feet buffer zones do not work in urban areas.

Turning to the constitutional analysis, Justice Sotomayor favorably cites the dissent of Judge Rivera on the New York Court of Appeals. (The Court of Appeals is New York's court of last resort, and its members are referred to as "Judge" rather than as "Justice".)

Judge Jenny Rivera's dissent below ably explains how New York's policies as applied to people like Ortiz raise constitutional concerns.3

When I first read this sentence, I wondered why Sotomayor would mention the judge's first name. When two judges on the same court share the last name, it is common to use the Judges' first names. For example, on the D.C. Circuit, Douglas and Ruth Ginsburg, or on the Eleventh Circuit, William and Jill Pryor. But there is only one Judge Rivera on the New York Court of Appeals. Then I googled Judge Rivera. She clerked for then-Judge Sotomayor on SDNY in 1993. (Rivera's term was Sotomayor's first or second year on the federal bench.) Here, Justice Sotomayor was giving her former law clerk a first name shout-out. And once Judge Jenny Rivera got a shout-out, Judge Rowan Wilson had to get a shout-out as well. In a Footnote, Justice Sotomayor offers some praise for the other dissenting vote--also identified by his first name:

FN3:Judge Rowan Wilson's dissent also importantly addresses how DOCCS's policy violates New York City's obligation to provide shelter to those in need.

I think "ably explains" is more praiseworthy than "importantly addresses."

Then, Justice Sotomayor engages in the sort of substantive due process analysis that was all-too-common in a bygone era:

Here, New York law provides that a defendant "shall . . . be conditionally released" once he earns sufficient credits, as Ortiz did. N. Y. Penal Law Ann. §70.40 (West 2021). As a New York City resident, Ortiz also enjoyed a right to "shelter and board [for] each homeless man who applies for it." Callahan v. Carey, 307 App. Div. 2d 150, 151, 762 N. Y. S. 2d 349, 350 (2003). In my view, under these New York state and city policies, Ortiz may well have held a liberty interest at the point that he became entitled to conditional release. At the very least, however, Ortiz indisputably held a liberty interest in his release at the expiration of his full sentence.

Sotomayor couldn't even get a second vote on this position.

As a policy matter, I agree with Sotomayor. New York's policy is irrational. These sorts of residency restrictions have not been shown to actually reduce reoffending. Indeed, to the contrary, restricting where a person can live may actually increase the risk of reoffending. But, these laws remain difficult to change. Sotomayor writes:

Despite the empirical evidence, legislatures and agencies are often not receptive to the plight of people convicted of sex offenses and their struggles in returning to their communities.

Still, I part company with Sotomayor's constitutional imperative:

Nevertheless, the Constitution protects all people, and it prohibits the deprivation of liberty based solely on speculation and fear. When the political branches fall short in protecting these guarantees, the courts must step in.

"Must step in." This position does not command a majority, or even a plurality of the current Court. Footnote 4 is once again a dictum.

Justice Sotomayor ends her dissent with a message to the New York Assembly:

New York should not wait for this Court to resolve the question whether a State can jail someone beyond their pa-role eligibility date, or even beyond their mandatory release date, solely because they cannot comply with a restrictive residency requirement. I hope that New York will choose to reevaluate its policy in a manner that gives due regard to the constitutional liberty interests of people like Ortiz.

I agree that the New York government is capable of creating a statutory right. This fact reaffirms why the Court was right not to intervene.

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  1. "(The Court of Appeals is New York's court of last resort, and its members are referred to as "Judge" rather than as "Justice".)"

    Cause NY likes to be different.

    1. Trial courts and the intermediate appeals court in NY are both called the "Supreme Court" and the judges are "Justices".

    2. She does not speaka the English. She speaka the Yale Law School.

      Substantive due process is the lawless made up shit that justified the Dred Scott decision and set off the Civil War.

    3. Where is the evidence that a residence more than 1000 feet from a school reduces child sexual abuse? Most sexual abuse takes place with family members. Maybe staying 1000 feet from all children would be effective. This is another silly dumbass lawyer made up garbage rule.

      1. Hey, it's a blind hog.

  2. "When the political branches fall short in protecting these guarantees, the courts must step in."

    Oy.....

    1. That's hardly a controversial statement. Or it shouldn't be. If the political branches authorize torture on the rack for jaywalking I would think the courts would fill obliged to step in. And indeed, the Court feels obliged to step in in lots of cases where conservatives feel the political branches failed to protect rights. Or are we done complaining about gun regulations?

      1. Her phrasing and concepts here leave a lot to be desired.

    2. "When government unconstitutionally trods on rights, courts must step in" might be a little more accurate.

      1. Which is rather different, and something I agree with. But the way Sotomayor phrases her "understanding"....

        It sounds like an activist judge who decide what's best for the people, rather than defend the Constitution.

        1. We're talking about Sotomayor not Neil Gorsuch.

          1. Exactly. An activist judge who decides what's best for the people of her own judgement, rather than defend the Constitution.

            1. So Neil Gorsuch. Got it.

              1. LOL. Sure. You understand Gorsuch is a textualist, right? No?

                1. If he was a textualist he would not have:

                  Joined Alito's dissent in California v. Texas which had nothing to do with the text of the statute or the Constitution and was engaged in guessing about what individual members of the House (but not the senate voted for)
                  Used nonbinding Senate Resolutions to demonstrate Congress did not intend to give OSHA or HHs authority to impose vaccine mandates.
                  Be a promoter of both the major questions doctrine or the nondelegation doctrine, both of which are not in the text (and have substantial historical problems).
                  Be a big fan of state sovereign immunity which has no textual basis.
                  Be a fan of qualified immunity which has no textual basis.
                  Etc. Etc. Etc.

                  1. All Justices are the same. Ivy indoctrinated scumbag lawyers supporting stupid government, lawyer rent seeking, and tyranny by their profession. They are scum, and enemies to our nation.

                1. You think you're being funny but you know I know more than you, right?

                  1. I know you think you know more....

                    1. I do, because I'm trained to know more than you. Plus I got As in legislation, con law, admin law, federal courts, and crim pro, so I generally know my way around constitutional law. What did you get?

                    2. Oh boy...."I got A's".

                    3. Yes. Which means I demonstrated an excellent grasp of the relevant materials to experts in the field. Did you?

                    4. "Oh boy...."I got A's".

                      He's still a child so he values childish things.

                    5. "He's still a child so he values childish things."

                      I'm actually an adult who is proud of his accomplishments. Do you not have any to be proud of?

                      Also do I need to direct you to CS Lewis again? The people who call things childish are the ones who haven't actually grown up and are obsessed with markers of adulthood. They don't have any self-actualization.

                      Also being called a child by someone who doesn't seem to have progressed beyond Stage 2 of Kohlberg's stages of moral development isn't the insult you think it is.

                    6. "proud of his accomplishments"

                      As in law school are as common as fish in a sea.

                      Most everyone here got good grades in school. After your first job, grades are just not that important.

                      I closed $35 million in New Markets deals last week. That's a professional accomplishment.

                    7. Cool. I’ve also worked on important things. Still can be proud of my grades.

                    8. Hate to tell you this LTG, but Bob's right.

                      "I got As"....seriously. The only thing that demonstrates is your immaturity. Nobody gives a crap what your 1L grades were. You might as well cite your LSAT or SAT scores to demonstrate your superiority.

                      You gonna go argue before the judge "Well judge, my client is clearly innocent, and I should know because I got an A in Crim Pro."? Seriously....you'd be laughed out of the courtroom, if not a job. Your argument stands on its own merits. Not on some grade from years ago.

                      You can be trained however you want. It's what you ultimately do that matters. And falling back on "I got As"....is so weak that it's amazing.

                    9. What’s actually immature is thinking you know more than someone who is trained to know more than you.

                      And I hate to break it to you but my grades happened to be a reflection of my abilities in the real world. So you might want to ponder why that is.

                    10. AL, you acted like a supercilious condescending asshole to someone who actually has a law degree.

                      I don't know why you did that, and maybe LTG shouldn't have risen to your bate, but I don't see how you with your link to freaking sparknotes comes off looking good in this exchange.

                    11. An A in a law school course means you are an indoctrinated lawyer with no discernment of reality. You are totally delusional, one of the stupidest people in the country, and a rent seeking scumbag. You believe minds can be read, in forecasting, and that standards of conduct should be set by a fictitious character. This character is really a mask for another fictitious character, Jesus. It makes your scumbag profession lawless in our secular nation. I support the hunting of the scumbag lawyer hierarchy. They are internal enemies. Arrest them. Try them. The sole evidence would be their lawless legal utterance. On reading of the verdict of treason, shoot them in the courthouse basement. Endowed chairs are part of this scumbag hierarchy. They indoctrinate thousands of intelligent, ethical young people into their delusions and into their Mafia.

                    12. LTG:

                      I for one, commend you on both your grades and your educational accomplishments.

                    13. Sarcastro,

                      It's pretty clear you didn't read the line of argument. LTG didn't "rise to my bait". He's the one claiming his 1L grades make him superior...

                      And yes, I laugh at that line of argument, because it's pathetic. Especially because he doesn't know my education. Truly smart educated people don't bring up their education or grades. Only those with deep inferiority do. It's like bringing up your SAT scores in your 20's to say how much smarter you are than someone else.

                  2. "because I'm trained to know more than you."

                    Just stop now while you're behind. All your arrogance and assumed superiority almost certainly are just that. Assumed.

                    What, you think you're the only one that went to school?

                    1. Well if I go to law school and do well it indicates that I happen to know more about the law than people who didn’t. Or do you think that all schooling is equal and go to your dentist for legal advice?

                  3. armchair, you’re consistently wrong on legal topics but thought you could school me with a sparknotes link.

                    Education and training are relevant to demonstrate that yes, I do in fact know more than you about the law, your stupid links notwithstanding.

              2. "So Neil Gorsuch."

                Glad you came around on Bostock being a policy decision.

                1. That actually was textualism. The dissent and critics had to pretend it wasn't.

                  Gorsuch likes textualism more than he hates gay people but not enough to take down the administrative state.

                  And again: if Bostock is wrong then, employers can fire people solely for being in an inter-racial relationship and there is no remedy under Title VII.

                  1. *not enough to not take down the administrative state. Double negative intended.

                  2. So now Gorsuch IS a textualist?

                    You're contradicting yourself.

                    1. No. He was doing textualism in that case, but he's not a committed textualist given his abandonment of it in other areas, as I alluded to above. You can do textualism and not be a committed textualist, in fact it happens a lot, see Kagan in United States v. Yates for instance.

  3. While the regulations about where "sex offenders" can live are somewhat over the top, and I'm rather dubious about the practice of not restoring peoples' full liberties on completion of sentence...

    You have to be pretty obsessed with living in NYC to spend an extra two years in prison rather than live somewhere else. Or was he prohibited from living anywhere else when he left prison?

    1. Under the legal principle that if he can make it there he can make it anywhere, permission to reside in NYC implies permission to live anywhere else.

      Incidentally, how reassuring is it, really, that sex offenders might have to take a car or bus in order to stalk their victims, rather than strolling across the street? Are sex offenders really that lazy?

      1. You have somewhat of a point, but there is also a matter of suspicion. If you see a stranger hanging around a playground, you get worried. If he lives right next to it, and you see him every day, not so much.

        1. Intuitively, hanging around a playground does not strike me as the usual modus operandi for a sexual predator, precisely because his presence would be noted and he would be questioned as to what he was doing there. There must be other, less risky ways to find children.

          1. Maybe. Maybe not. Lots of parents at the playground. How are you to know which people are the parents and which are the strangers?

            1. I'd tend to think that they'd predate someplace other than where they lived, just to reduce the chance of being recognized. But I read of too many cases where they don't.

              Maybe because those were the ones who were recognized and caught?

              Part of the problem here, of course, is that "sex offenders" are a mixed bag, real predators without restraint, guys who took a leak behind a bush and somebody saw them, and everything in between.

              1. You assume they're being logical. Most are not.

            2. Oh, I think most of the time it's obvious who is a parent and who is leering at the kids. Maybe not always.

              But even so, the broader issue here is that there's a lot of conduct that will get someone on the sex offender registry that does not make them a danger to children. Basically telling someone they can't live anywhere in Manhattan, where there is no real link between what they actually did and the need to protect children, strikes me as constitutionally problematic. It strikes me that if you're going to put those kinds of restrictions on someone, you need a far better reason than just that he landed on the sex offender registry.

              I'm not in theory opposed to sex offender registries, but I would limit it to people who really are dangerous, and only impose restrictions that are actually necessary to protect people.

              1. "Oh, I think most of the time it's obvious who is a parent and who is leering at the kids. Maybe not always."

                Sigh...

                A piece of personal advice for you, especially if you have kids. No, it's not obvious. Child molesters are friendly, likable, and may even have their own children. You generally don't just "spot them" at the playground.

                https://themamabeareffect.org/think-all-child-molesters-are-pedophiles-think-again/

                1. You do if they've already been wrung through the mill of the criminal justice system, which they have been if they're on the sex offender registry.

              2. "I think most of the time it's obvious who is a parent and who is leering at the kids"

                And I think your opinion is based on no evidence whatsoever. For counter-evidence, look at the large number of parents (mostly dads) who are falsely accused. Look also at the actual statistics on child predators - specifically, the fact that they are by a large majority the child's own family members.

                And that just makes the sex offender registries even worse. They are wrong not merely in practice but even in theory they are unworkable.

                1. Were those falsely accused dads hanging around playgrounds leering at kids?

                  And again, the relevant category here is "people on the sex offender registry", which means they've already been through the criminal justice system, and don't typically talk and act like a suburban dad who's watching his kids play soccer.

                  1. And the issue is that you seem to believe "people on the sex offender registry" who've "already been through the criminal justice system" are:

                    1) easily differentiated from other people (not proven), and
                    2) the ones you should primarily be concerned about

                    ...as opposed to the far greater number of sex offenders who:

                    1) appear entirely normal and friendly, and
                    2) have an existing relationship with you or your child

                    Might an emotional attachment to the first idea be blinding you to the greater risk presented by the second?

                    1. No, but thanks for playing.

                      I have not said that sex offenders in general look different from everyone else. I’ve said that people on the sex offender registry, who have been convicted of crimes, done time, and then been through the nonstop harassment that comes with being a registered sex offender tend to look and act differently from the rest of us. Not because they’re sex offenders but because of the bad things they’ve been through.

                    2. I don't understand your theory that because their experiences were different that they're easy to spot.

              3. "Part of the problem here, of course, is that "sex offenders" are a mixed bag, real predators without restraint, guys who took a leak behind a bush and somebody saw them, and everything in between."

            3. Maybe 25% of sex predators are strangers. The majority are members of the family. That is the place to hang out to abuse children sexually, the home.

        2. If you see a stranger hanging around a playground, you get worried.

          I actually don't, because I'm not a paranoid loon who sees boogeymen everywhere he looks.

          1. David, you do not want the lawyer client to get scared and to stop committing crimes. That would cause lawyer unemployment.

            1. No, it wouldn't, nutjob.

    2. I think there are 2 separate issues in this case.

      1) Level three sex offenders have the highest rate of recidvism (pedophile?) and as such need to kept away from children.

      2) on the other hand, I think you have serious constitutional problem with keeping someone in prison after the end of their sentence. I dont recall specifics of the case, possibly a Scalia or Thomas opinion, that held that you could not impose post imprisonment restrictions that were not part of the original sentence. Possibly not requiring registration as a sex offender before sex offender lists existed.

      for once I agree with sotomayer.

      1. I suppose you could make tattooing them on the forehead part of the sentence.

        1. the issue that I have (which was the same as either Scalia or Thomas - my apologies for forgetting the case/opinion) is the post de facto retroactive imposed punishment.

          so while I agree with the sotomayer's conclusion, I disagree with her rationale. It should be based on the post de facto imposition of a longer sentence and not whether the policy is of the limitations of his release.

          Somewhat similar to ginsbergs dissent in Gamble, she got the right conclusion, but Gorsuch had the much better constitutional rationale in his dissent.

      2. I too agree with Sotomayer (rare occurence). This should be a simple case. One day past the sentence and he should have a habeas claim.

        1. I think that is the bottom line.

          It's a bottom line I doubt the Court will adopt, and I'm damn sure Sotomayor would not generalize, though, if the Lautenberg amendment ever makes it to the Supreme court again.

          1. Unfortunately, there are enough heartless authoritarian panderers currently on the Court to keep this guy in prison.

    3. I am concerned about which other crimes they may assign similar restrictions on in the future. With one under their belt and courts so reluctant to strike it down it always leaves it open to further abuse.

    4. This dissent will come in handy for the bearing arms cases…she’s just stepped in a pile of shit.

  4. Substantive due process isn't dead, it isn't even resting...it's alive and awake...it simply protects different rights than in the "Lochner era." Then it claimed that due process meant (for instance) a right to contract and a right to earn a living. Now it's rights related to (alleged) sexual autonomy.

    My limited point is that substantive due process may have changed its emphasis, but isn't abolished.

  5. "Substantive" and "process" are not the same creatures. Substantive due process is an oxymoron.

    1. Substantive due process was a bastard creation to allow them to incorporate parts of the Bill of Rights, selectively, without ever having to admit that the Slaughterhouse court had been really, really naughty, and the whole Bill of Rights had actually been incorporated via the P&I clause.

      They really hate having to admit that a prior Court had gotten something wrong, and almost certainly deliberately. And this work-around let them basically invent things as they went along, instead of being forced to immediately incorporate amendments 1-8.

      1. Brett Bellmore
        February.22.2022 at 3:33 pm
        Flag Comment Mute User
        "Substantive due process was a bastard creation to allow them to incorporate parts of the Bill of Rights, selectively, without ever having to admit that the Slaughterhouse court had been really, really naughty, and the whole Bill of Rights had actually been incorporated via the P&I clause."

        granted I am of the minority opinion, but the BoR was incorporated at ratification since the Federal government, and the states were parties to the constitution and the subsequent ratification of the BoR.
        1) See thomas concurring opinion in Mcdonald were he makes reference to that line of reasoning.
        the BoR was certainly incorporated against the Federal Govt which makes the gamble holding so egregious. See gorsuch dissent.
        See

        1. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

          The powers of the federal and state governments are, according to the 10th amendment, mutually exclusive. There shouldn't be any dual sovereign exception to double jeopardy, since there shouldn't be circumstances under which the same act would be under the jurisdiction of both levels of government.

          It's purely a product of the federal government being permitted to enact laws concerning matters that are exclusively state matters.

          1. There shouldn't be any dual sovereign exception to double jeopardy, since there shouldn't be circumstances under which the same act would be under the jurisdiction of both levels of government.

            The Crimes Act of 1790, which was the first systematic codification of federal criminal law, created several offenses that would typically also be state crimes (e.g. assaulting an ambassador or counterfeiting). Were those provisions unconstitutional, in your view?

            1. And the Alien and Sedition acts violated the 1st amendment. Your point?

            2. The constitution grants the federal government the power to coin money and provide for the punishment of counterfeiting, so that was never a state crime.

              It also assigns the Supreme Court original jurisdiction to all cases affecting ambassadors, so assaulting an ambassador was arguably never a state crime either

          2. The powers of the federal and state governments are, according to the 10th amendment, mutually exclusive.

            That is, of course, not remotely what the 10th amendment says.

            1. It comes right out and says that the powers delegated to the states are a subset of the powers not delegated to the federal government. That means, inevitably, that if the federal government was delegated a power, the states don't have it.

              You do know how to draw a Venn diagram, don't you?

              The case at hand (Gamble) is an excellent example of this: The federal government was never delegated the general police power, that's a state level power. And under the general police power, a state arguably CAN criminalize gun possession by felons.

              Under what delegated power does the federal government do it? Outside, I mean, DC, or properties bought with the consent of a state legislature? The law purports to be based on the interstate commerce clause, but this is transparently a ruse.

              It is, instead, an exercise of the general police power the federal government was deliberately NOT given, and without that exercise, the federal government would have lacked jurisdiction.

              1. You think the 10A lays out the only powers states have?

                Funny, it doesn't say exclusive in the text.

                1. I think it literally does that. In the sense that there's this sea of potential powers; Those that are delegated to the federal government are, explicitly, on the terms of the 10th amendment, denied the states. That precludes overlapping jurisdiction!

                  Those that are prohibited to the states are denied the states.

                  Of what remains, it is a matter of state constitutional law whether the state has them or not, because they may instead be reserved to the people.

                  What has happened over the decades, but mostly after the Civil war, is that the federal government has claimed powers hugely exceeding in scope those actually delegated to it, mostly by means of abusive interpretation of "necessary and proper", and of the interstate commerce clause.

                  The federal law violated in Gamble purported to be an exercise of the interstate commerce power, but in fact, that was just pretext. It was a general police power exercise with some commerce boilerplate.

                  1. What's your support for that? It's not in the text, and it wasn't part of original practice as Noscitur points out. You're pulling this out of nowhere.

                    Moreover, listen to what you're arguing - that the pre-14A Federal Constitution severely curtails the power of the States!

                    1. "Moreover, listen to what you're arguing - that the pre-14A Federal Constitution severely curtails the power of the States!"

                      If you think that, you completely fail to understand my argument.

                      In fact, what the 14th amendment did was to increase the scope of "prohibited by it to the states", by including in that category violations of the Bill of Rights. And thus reduced state power. It also increased significantly federal power by giving the federal government power to enforce the amendment.

                      But, yes, the pre-14th amendment federal constitution DID curtail the power of the states, expressly so.

                      First, by removing from the domain of state power any power granted the federal government. The powers delegated to the federal government were formerly state powers, and ceased to be with that delegation.

                      And secondly, by specific prohibitions of state powers: "No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility."

                    2. First, by removing from the domain of state power any power granted the federal government.

                      False. There is no such clause in the constitution.

                      The powers delegated to the federal government were formerly state powers, and ceased to be with that delegation.

                      Both parts of that are wrong. Some of the powers delegated to the federal government are entirely new powers, not formerly state powers.

                      And delegating them to the federal government does not cause them to cease to be state powers. We know that, because Article I, Section 10 would be largely superfluous under your misreading. For example, Article I, Section 8 grants the federal government the power to grant Letters of Marque. Under your reading, once it did that, states could no longer do such a thing. And yet, Article I, Section 10 says that no state shall grant a Letter of Marque.

                    3. "False. There is no such clause in the constitution."

                      "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

                    4. Brett, you boldfaced words, but that doesn't mean you read them.

                      "The powers not delegated to the United States by the Constitution,"

                      is not at all the same thing as

                      "First, by removing from the domain of state power any power granted the federal government."

                      In fact, the language you just quoted and boldfaced from the constitution doesn't say one word about powers that were granted to the federal government.

                    5. It doesn't say powers delegated to the federal government are necessarily denied to the states, just that those power are not reserved exclusively to the states. For example congress is granted the power to lay and collect taxes, does that mean all taxes collected by the states are unconstitutional? That can't possibly be the intent, because states clearly need a source or revenue otherwise any powers they hold are meaningless

                  2. Those that are delegated to the federal government are, explicitly, on the terms of the 10th amendment, denied the states.

                    Read more better.

                    It doesn't say that at all, let alone "explicitly."

                    A -> B is not logically equivalent to !A -> !B

              2. It comes right out and says that the powers delegated to the states are a subset of the powers not delegated to the federal government.

                No, Brett. Setting aside that it does not say one word about "powers delegated to the states" (a phrase that completely misunderstands the constitutional structure, in fact. Delegated by whom?), but rather mentions powers reserved to the states, it does not say what you said.

                That a power NOT delegated to the federal government is reserved to the states (or people) is not equivalent to the statement that a power delegated to the federal government is forbidden to the states.

                For example: pursuant to Article I, Section 8, the federal government has the power to punish counterfeiting. So, is that a power "not delegated to" the federal government? No. Is it a power "prohibited to" the states? Also no.

                So what does the 10th amendment say about it? Nothing at all.

              3. That means, inevitably, that if the federal government was delegated a power, the states don't have it.

                Brett, by that line of thinking state and local governments can't collect taxes, because Article I Section 8 grants that power to Congress. Will you test your theory in court and let us know how well it works out?

  6. You know, I don’t think you need any fancy modern concepts of substantive due process to get the idea that people have a liberty interest in not being kept in prison beyond the experation of their sentence. A very narrow and traditional concept of the scope of the due process clause would get you there as well.

    Indeed, it seems really really strange to me to see how you can get a doctrine by which “liberty” includes a heightened-scrutiny right to do all sorts of controversial things not mentioned in the constitution but which the justices of tbe moment are keen on, yet doesn’t contain right to something as basic as not being kept in prison without judicial process.

    1. Beyond the expiration of their sentence, sure. That's not what this case is about. From the opinion, "In New York, criminal defendants who earn sufficient good time credits before the end of their prison sentences are entitled to conditional release." BEFORE the end of their sentence being the operative phrase.

  7. How often do Justices call out a state legislature to change the law?

    (I thought Justice Sotomayor was right about that, as a policy matter)

    1. I don't think it's common but I recall seeing it before. I actually think it's entirely appropriate for a Justice to do this in a concurrence. Enforce the law that the legislature has written but then encourage them to change it. Much better than trying to undo the legislature's decision from the bench because you don't agree with the policy choice. I think it's less appropriate in a dissent. If the Justice thinks that the law is unconstitutional or otherwise invalid then there's no need or place for a policy discussion. Let the argument stand on it's own merits.

    2. I think it’s a completely reasonable thing to do.

      An example of a federal judge doing this successfully is Judge Craven’s opinion in Perkins v. North Carolina. After finding North Carolina’s sodomy law constitutional uphholding Perkins’ 20-30 year sentence for consensual sodomy despite the fact that his accomplice got only 5-7 years, Judge Craven ended his opinion with a plea to the North Carolina Legislature to reconsider its draconian 60 year maximum and 5 year minimum.

      Within a year, the legislature changed the law, reduced the maximum to 10 years, and dropped the mandatory minimum.

      https://law.justia.com/cases/federal/district-courts/FSupp/234/333/1671292/

  8. "Sotomayor couldn't even get a second vote on this position."

    She could have had two additional votes but neither of them wanted to issue a rare statement respecting denial of cert.

  9. Interesting to me that so far everyone else is as lazy as I am in not researching the original case.

    Not the first time this has been posted but the question of why anyone would stay in jail an extra two years because it was hard to find a place to live in NYC seems odd. Could the guy move to a farm in rural NY, or Idaho for that matter. Truth be told most of the US is not within 1,000 feet of a school house.

    1. An old saying comes to mind: The law in its majesty forbids rich and poor alike from sleeping under the bridge.

      You've been in jail a few years. You have no money, no credit history, no car, and you need a place where somebody will take you in and where you can find a job you can walk to or take mass transit to. You have to live and work in state while you are on parole.

      1. As I occasionally point out, the alternative to the law in its majesty forbidding the rich and poor alike from committing crimes, isn't the law giving the poor a pass. It's the rich getting a pass.

        That majestic equality is actually something to aspire to, and is usually fallen short of.

        Anyway, you'd think the state itself would have had the presence of mind to give this guy some relocation assistance, just to avoid having to confront a case like this, that could really bite them. Well, "Oft evil will shall evil mar."; They were probably taking too much delight in his predicament to do the smart thing.

    2. Could the guy move to a farm in rural NY, or Idaho for that matter.

      Or maybe he has family/friends in NYC, and some kind of job prospects there.

      Maybe it's his home and he likes it.

      Maybe he doesn't know a damn thing about farming, and nobody in Idaho who doesn't know him - which is everybody in Idaho - is going to hire him or have anything to do with him.

  10. Whether New York is violating its own law or constitution is, of course, a matter solely for New York courts to determine. The federal courts have no business substituting their interpretations of state laws for those of state courts. It's hardly surprising that Sotomayor could not get any colleagues to sign on to such a notion.

  11. "Must step in." This position does not command a majority, or even a plurality of the current Court. Footnote 4 is once again a dictum.

    I mean, I suppose it's hopeless to point out Blackman's continued poor analysis, but… that's not what dictum means.

    1. It's the kind of poor analysis that makes you a shoo-in for a choice spot at a T4 dump like South Texas.

    2. If you read Sotomayor's statement, you may have noted there was no "Footnote 4" (note the capitalization). Blackman is referring to probably the most famous footnote in Supreme Court history, footnote 4 in United States v. Carolene Products (1938). And it was obviously a dictum, referring to hypothetical legislation not before the Court in that case.

      1. So he meant 'Footnote 4 is still dicta' under your construction.

        1. Dicta is plural, of course. Dictum is one thing that is said. Obiter dictum is one thing said in passing.

      2. You might want to see if South Texas has any current openings.

        South Texas, the school so bad it tried but failed to steal a better school's identity.

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