U.S. Supreme Court
Dobbs v. Jackson Women’s Health Organization
No. 19-1392 6/24/22
Issue:
Does the 14th Amendment confer a right to abortion?
Holding:
No. The Court overrules Roe v. Wade, 410 U.S. 113, and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, and rules that states have the right to regulate abortion. “Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” Read opinion.
Concurrence (Thomas, J.):
“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous,’ … we have a duty to ‘correct the error’ established in those precedents. … After overruling these demonstrably erroneous decisions, the question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”
Concurrence (Kavanaugh, J.):
“To be clear, … the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.” The concurrence also noted that overruling Roe “does not mean the overruling of” Griswold, Lawrence, Eisenstadt, Loving, and Obergefell.
Concurrence (Roberts, C.J.):
“I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. … But that is all I would say, out of adherence to a simple yet fundamental principle of judicial restraint: If it is not necessary to decide more to dispose of a case, then it is necessary not to decide more. … The Court’s opinion is thoughtful and thorough, but those virtues cannot compensate for the fact that its dramatic and consequential ruling is unnecessary to decide the case before us.”
Dissent (Breyer, J. joined by Sotomayor and Kagan, JJ.):
“Roe and Casey well understood the difficulty and divisiveness of the abortion issue. … So the Court struck a balance, as it often does when values and goals compete. It held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. … Today, the Court discards that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs.”
Commentary:
This opinion is controversial and its ramifications continue to develop as lawsuits are filed to challenge state trigger laws. For more information on how Dobbs will affect Texas law, including trigger laws passed in the 2021 legislative session, see “Interim Update: Abortion-Related Crimes after Dobbs.”
New York State Rifle & Pistol Ass’n, et al. v. Bruen, Superintendent of New York State Police, et al.
No. 20-843 6/23/22
Issue:
Does New York’s proper-cause requirement for obtaining an unrestricted license to carry a concealed firearm violate the 14th Amendment by preventing people from exercising their 2nd Amendment rights to keep and bear arms?
Holding:
Yes. “[T]he Second and Fourteenth Amendments protect an individual’s right to carry a handgun for self-defense outside the home,” so New York’s licensing requirement that a person who wants to carry a firearm outside his home must “demonstrate a special need for self-protection distinguishable from that of the general community” is unconstitutional. The Court noted that 43 states that require a permit to carry a handgun in public grant licenses whenever applicants satisfy threshold requirements, without granting the licensing officials discretion to deny licenses based on a perceived lack of need or suitability. “We know of no other constitutional right that an individual may exercise only after demonstrating to government officers some special need. That is not how the First Amendment works when it comes to unpopular speech or the free exercise of religion. It is not how the Sixth Amendment works when it comes to a defendant’s right to confront the witnesses against him. And it is not how the Second Amendment works when it comes to public carry for self-defense.” Read opinion.
Concurrence (Alito, J.):
“Our holding decides nothing about who may lawfully possess a firearm or the requirements that must be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may possess. …”
Concurrence (Kavanaugh, J., joined by Roberts, C.J.):
“[T]he Court’s decision does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court’s decision does not affect the existing licensing regimes—known as ‘shall-issue’ regimes—that are employed in 43 States. The Court’s decision addresses only the unusual discretionary licensing regimes, known as ‘may-issue’ regimes, that are employed by 6 States including New York. … Second, … the Second Amendment ‘is neither a regulatory straightjacket nor a regulatory blank check.’ Properly interpreted, the Second Amendment allows a ‘variety’ of gun regulations.”
Concurrence (Barrett, J.):
“I write separately to highlight two methodological points that the Court does not resolve. First, the Court does not conclusively determine the manner and circumstances in which postratification practice may bear on the original meaning of the Constitution. … Second and relatedly, the Court avoids another ‘ongoing scholarly debate on whether courts should primarily rely on the prevailing understanding of an individual right when the Fourteenth Amendment was ratified in 1868’ or when the Bill of Rights was ratified in 1791.”
Dissent (Breyer, J., joined by Sotomayor and Kagan, JJ.):
“Many States have tried to address some of the dangers of gun violence … by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. The Court today severely burdens States’ efforts to do so. It invokes the Second Amendment to strike down a New York law regulating the public carriage of concealed handguns. In my view, that decision rests upon several serious mistakes.”
Commentary:
Texas already has very permissive laws regarding carrying firearms and even allows most people over 21 years of age to openly carry a holstered firearm in public without needing a license to carry. See Tex. Penal Code §§46.02, 46.04. Thus, because Texas does not have a restriction similar to the New York law that the SCOTUS struck down as an unconstitutional infringement on the Second Amendment, this opinion will not impact the current firearms landscape in Texas.
Nance v. Ward
No. 21-439 6/23/22
Issue:
Can a prisoner challenge a state’s method of execution and seek to be executed by a different method not authorized by state law through 42 U.S.C. §1983?
Holding:
Yes. A prisoner can challenge a method of execution through §1983 rather than through a petition for a writ of habeas corpus. Previously, the Court had held that method-of-execution challenges could be raised under §1983 rather than through a habeas petition when state law includes a readily available alternative method of execution. The Court extended this reasoning to apply to situations where the prisoner identifies “a readily available alternative method of execution that would significantly reduce the risk of severe pain” that is not authorized by applicable state law. In this case, the prisoner had asked to be executed by firing squad—not authorized by Georgia law—rather than the only authorized method: lethal injection. Read opinion.
Dissent (Barrett, J., joined by Thomas, Alito, and Gorsuch, JJ.):
Because lethal injection is the only method of execution authorized in Georgia, “if Nance is successful, the defendants in this case—the commissioner of the Georgia Department of Corrections and the warden—will be powerless to carry out his sentence. That makes habeas the right vehicle for Nance’s Eighth Amendment challenge.”
Commentary:
Remember that a §1983 claim is a lawsuit alleging that a state or local official (including a law enforcement officer) or a person acting under color of state law has violated the plaintiff’s civil rights under the U.S. Constitution.
The majority opinion premised its holding that a §1983 claim is an appropriate vehicle for a method-of-execution challenge because the Georgia Legislature could modify its death-penalty statute to authorize the additional method of execution that the prisoner identified and, thus, “[the prisoner’s] requested relief still places his execution in Georgia’s control.” Like in Georgia, Texas’s death-penalty statute authorizes execution only by lethal injection. See Tex. Code Crim. Proc. Art. 43.14(a). Hence, if a Texas death-row inmate brings a method-of-execution challenge under §1983, this opinion will allow that action to proceed and, if the claim is ultimately successful, this opinion could require a legislative change to the Texas death-penalty statute to allow additional, readily available alternative methods of execution. Note, however, that the SCOTUS did not address the merits of the §1983 suit, only whether §1983 was an appropriate procedural vehicle to advance the prisoner’s claim in these circumstances.
Vega v. Tekoh
No. 21-499 6/23/22
Issue:
Does a violation of Miranda provide a basis for a §1983 claim?
Holding:
No. A violation of Miranda is not necessarily a violation of the 5th Amendment and therefore does not confer a right to sue under §1983. “Miranda did not hold that a violation of the rules it established necessarily constitute a Fifth Amendment violation, and it is difficult to see how it could have held otherwise. For one thing, it is easy to imagine many situations in which an un-Mirandized suspect in custody may make self-incriminating statements without any hint of compulsion.” Read opinion.
Dissent (Kagan, J., joined by Breyer and Sotomayor, JJ.):
“If police fail to provide the Miranda warnings to a suspect before interrogating him, then he is generally entitled to have any resulting confession excluded from his trial. … From these facts, only one conclusion can follow—that Miranda’s protections are a ‘right[]’ ‘secured by the Constitution’ under the federal civil rights statute. … And so it prevents individuals from obtaining any redress when police violate their rights under Miranda.”
Commentary:
Practically speaking, this opinion will largely be of interest to federal, civil attorneys. However, the opinion does provide an insightful reminder that Miranda-imposed prophylactic rules are meant to safeguard Fifth Amendment rights, but a violation of those rules does not automatically establish a violation of the Fifth Amendment. So, un-Mirandized statements made as a product of custodial interrogation may be inadmissible if they violate Texas Code of Criminal Procedure Art. 38.22 but, as the SCOTUS notes, those statements will not necessarily violate the Fifth Amendment when there is no hint of compulsion attached to them.
Texas Court of Criminal Appeals
Osorio-Lopez v. State
Nos. PD-0354-21 & -0355-21 6/29/22
Issue:
Do Code of Criminal Procedure Arts. 1.051 and 46B.006 require defendants to be represented by counsel at a retrospective competency hearing?
Holding:
No. Arts. 1.051 and 46B.006 address when a defendant is entitled to an appointed attorney. They do not address the issue of whether a defendant can waive the right to counsel and proceed pro se. The Court concluded that the court of appeals erred in determining that a defendant can never waive the right to counsel at a retrospective competency hearing and proceed pro se. “[T]he issue is not whether [the defendant] had a right to self-representation … but whether [he] was competent to waive counsel and whether he voluntarily, knowingly, and intelligently did so after asserting his desire to represent himself.” Read opinion.
Commentary:
Here, the Court of Criminal Appeals rejected the lower appellate court’s determination that a defendant must be represented by an attorney at a retrospective competency hearing, even if the defendant wishes to exercise his Sixth Amendment right to self-representation. The Court did not reach the merits of whether the defendant here validly waived his right to counsel because the record concerning the defendant’s present competency and the adequacy of the trial court’s Faretta warnings was not adequately developed. Nevertheless, this case reiterates the importance of the right to self-representation in all stages and portions of a criminal prosecution—including retrospective competency proceedings. Though extra care is warranted to safeguard the fairness of the proceedings when issues of the defendant’s competency are involved, the defendant still must be permitted to proceed pro se if the trial court is satisfied that the defendant is competent and is making a voluntary, knowing, and intelligent decision to do so.
Texas Supreme Court
Texas Dep’t of State Health Services v. Crown Distributing, et al.
No. 21-1045 6/24/22
Issue:
Does Texas’s ban against the manufacture and processing of smokable hemp products violate the Texas Constitution’s due-course clause?
Holding:
No. “Considering the long history of the state’s extensive efforts to prohibit and regulate the production, possession, and use of the Cannabis sativa L. plant, we conclude that the manufacture and processing of smokable hemp products is neither a liberty interest nor a vested property interest the due-course clause protects. It is, instead, ‘purely a personal privilege’ that the people’s elected representatives in the legislature may grant or withdraw as they see fit.” Read opinion.
Concurrence (Young, J., joined by Hecht, C.J., Devine and Blacklock, JJ.):
The concurrence concludes that the holding would be the same under either the Texas or U.S. Constitution, which means the Court did not have to consider the scope of Texas’s due-course clause. “That condition will not last long, though. The very fact that the lower court used the Texas due-course clause to invalidate the statute here illustrates why we should soon expect cases that require more from us. We must be ready when those cases come, and in today’s respite, we should take the perspective of Aesop’s ant rather than his grasshopper.” Read concurrence.
Commentary:
Texas law permits Texans to cultivate, handle, transport, distribute, sell, purchase, manufacture, and possess consumable hemp products, but not consumable hemp products that are smokable. See Tex. Health & Safety Code §443.204(4); see also Tex. Admin. Code §300.104. With this issue resolved—and the constitutionality of §443.204(4) upheld—any prosecutions related to the unlawful possession or manufacture of smokable hemp products will be able to proceed.
Notably, though, because the Texas Department of State Health Services abandoned its argument regarding the portion of Texas Administrative Rule 300.104 that prohibits the distribution and retail sale of consumable hemp products for smoking, the trial court’s injunction against enforcement of that part of the rule remains in effect and, thus, a prosecution will not be viable for a violation of that particular provision.
Also, if you’re interested in the history of cannabis, hemp, marijuana, CBD, THC, and the laws that have evolved to regulate them at the federal and state level, this opinion will provide a good read.