The Supreme Court took a big step forward today and ruled that defense counsel must advise clients of adverse immigration consequences to their guilty pleas. The case is Padilla v. Kentucky, the opinion is here. Even Roberts and Alito concurred (Scalia and Thomas dissented.) The holding:

The lawyer for an alien charged with crime has a constitutional obligation to tell the client that a guilty plea carries a risk that he will be deported. The Court, however, does not decide whether the individual in this specific case has been prejudiced by the lawyer’s failure to give that advice.

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All lawyers remember their first encounter with Erie v. Tompkins, a staple of the first year of law school. Erie still reverberates for substantive reasons as well. Via Volokh, we see that that the Supreme Court has handed down the latest on Erie questions in Shady Grove v Allstate (PDF), though the Court's fractured opinion (with interesting alliances) leaves things quite muddled :

JUSTICE SCALIA announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II–A, an opinion with respect to Parts II–B and II–D, in which THE CHIEF JUSTICE, JUSTICE THOMAS, and JUSTICE SOTOMAYOR join, and an opinion with respect to Part II–C, in which THE CHIEF JUSTICE and JUSTICE THOMAS join. [. . .] JUSTICE STEVENS, concurring in part and concurring in the judgment. [. . .] JUSTICE GINSBURG, with whom JUSTICE KENNEDY, JUSTICE BREYER, and JUSTICE ALITO join, dissenting.

I'll try and provide a cogent analysis later today for the 2 readers interested. I happen to like these kinds of cases.

The Supreme Court held oral arguments today in Dillon v. U.S., which I described here.

The transcript of today's argument is here. Via Peter G. in comments,

Justice Kennedy got in the face of an Asst to the Solicitor General (with SG Kagan sitting there) about the fact that there were no Presidential sentence commutations or other clemency grants last year, none, and only five the year before (page 39 of the linked transcript).

Another case heard by the Supreme Court today was Barber v. Thomas, (transcript here) about whether the Bureau of Prisons is cheating prisoners in the way it calculates good time credits. [More...]

On Tuesday, the Supreme Court will hear oral arguments in a crack cocaine case. The case is Percy Dillon v. U.S., and the issue is whether the two level reduction in federal sentencing guidelines for crack cocaine implemented a few years ago allows judges, when implementing the reduction, to conduct a complete resentencing.

Many defendants were sentenced to huge terms of imprisonment for crack when the guidelines were mandatory. Since Booker in 2005, they have become discretionary. So when a defendant files a motion to have his or her sentence reduced under the guideline amendment, shouldn't the Judge be allowed to resentence under current law, treating the guidelines as advisory only? Put another way, shouldn't Booker be followed for sentencing modification decisions?

The case could have big ramifications: [More...]

Tony Mauro writes at Law.com that Obama is ready with a short list of replacement candidates if Justice John Paul Stevens retires. Who's on it?

The list includes Solicitor General Elena Kagan, appeals court Judges Diane Wood and Merrick Garland, and Homeland Security Secretary Janet Napolitano.

Janet Napolitano? Ugh, I hope not.

Justice John Paul Stevens, who turns 90 on April 20, discusses his retirement plans in a New Yorker interview with Jeffrey Toobin. He says he's keeping his options open and will decide in about a month.

Sounds like he's planning a retirement announcement for his birthday. But he cautions against reading too much into his decision to hire only one law clerk. His other three clerks offered to stay with him. So he only needs one new clerk.

If he retires, then what? Will Obama name a safe choice to avoid a confirmation battle? Or will he show some spunk and name a true progressive?

President Obama has nominated Goodman Liu, age 39, to the 9th Circuit Court of Appeals. Finally, he's nominated a liberal.

Goodwin Liu, 39, is an unabashed liberal legal scholar who, if confirmed, could become a force on the federal appeals court for decades. There's talk that in time, the Rhodes Scholar, former high court clerk and current assistant dean and law professor at the University of California, Berkeley, could be the first person of Asian descent chosen for the Supreme Court.

Jeff Sessions isn't happy. That's a good sign. Obama needs to realize his efforts to appease Republicans by nominating centrists isn't working:

Only six of Obama's 15 appeals court nominees have been confirmed even though the president's choices have seemed designed to avoid "high-profile fights," in the words of Curt Levey of the conservative Committee for Justice.

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Miranda warnings are required to be given when a suspect is in a custodial setting. If the suspect invokes his right to refuse to answer questions without a lawyer, no questioning can take place. If he starts to answer questions and then asks for a lawyer, questioning must cease. If these rules aren't followed, Edwards v. Arizona allows a subsequent confession to be suppressed. Under Edwards, any subsequent waiver of Miranda rights is presumed involuntary unless the suspect, rather than the police, reinitiated questioning. The

The Supreme Court today ruled in Maryland v. Schatzer that if the suspect asks for a lawyer and is released without questioning taking place, that request is only valid for two weeks. Scotus Blog reports here and has the opinion here. The opinion is written by Justice Scalia. No one dissented, including Sotomayor, but Justices Stevens and Thomas filed their own opinions concurring in part and concurring in the judgment. [More....]

Scotus Blog has a detailed recap of today's oral arguments before the Supreme Court in a case addressing the constitutionality of the law prohibiting material support of terrorism. The case involves the first amendment rights of free speech, association and expression versus laws designed to aid the war on terror.

The case is Holder v. Humanitarian Law Project. The New York Times weighs in here. Georgetown law professor and civil liberties expert David Cole argued for the Humanitarian Law Project. Elena Kagen argued for the Government. Here's a scary note:

[Kagan] told Justices Kennedy, Sotomayor and John Paul Stevens that the law would forbid a listed group from retaining a lawyer to file a friend-of-court brief in a U.S. court on its own behalf, because that would amount to an outlawed “service” to the organization. And she told Stevens that, if one of the Project supporters involved in this case — California college professor Ralph Fertig — approached the United Nations as an agent of one of the listed groups, he would be covered by the law.

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Justice Alito's reaction to President Obama's criticisms (perfectly appropriate criticisms imo) of the Citizens United decision (PDF) has led to criticism of Justice Alito's actions. Glenn Greenwald writes:

[T]he behavior of Justice Alito at last night's State of the Union address -- visibly shaking his head and mouthing the words "not true" when Obama warned of the dangers of the Court's Citizens United ruling -- was a serious and substantive breach of protocol that reflects very poorly on Alito and only further undermines the credibility of the Court. It has nothing to do with etiquette and everything to do with the Court's ability to adhere to its intended function.

There's a reason that Supreme Court Justices -- along with the Joint Chiefs of Staff -- never applaud or otherwise express any reaction at a State of the Union address. It's vital -- both as a matter of perception and reality -- that those institutions remain apolitical, separate and detached from partisan wars.

I think this analysis is fundamentally wrong. I'll explain why on the flip.

Kevin Drum and Mark Kleiman wonder:

Mark Kleiman nominates another unforeseen beneficiary: ["]One aspect of the ruling that hasn’t gathered much attention: as far as I can tell, the analysis doesn’t distinguish between domestic and foreign corporations....So the ruling allows Hugo Chavez to spend as much money as he wants to helping and harming American politicians. If the Russian, Saudi, and Chinese governments don’t currently have appropriate vehicles for doing so, you can count on it: they soon will. [. . .] Buying influence on the American government has to be the highest-leverage activity ever invented, and Justice Kennedy and his four accomplices just invited every oligarch and tyrant in the world to play. This is not just a threat to democracy; it’s a threat to sovereignty."

Not sure if Kleiman is right, but it is a wonderfully appealing line of populist attack available to the Democrats on Citizens United. Arlen Specter is proposing a constitutional amendment to reverse Citizens United. Part of the sell can be that it will keep foreign money out of our elections.

Speaking for me only

On the call:

Brennan Center Executive Director Michael Waldman, NYU Law Professor and Supreme Court Litigator Burt Neuborne, Brennan Center campaign finance expert Monica Youn, and Heather Gerken, Elections Law Professor at Yale Law School.

First up, Burt Neuborne. The importance of the Citzens United case is that it gives a green light to allow unfettered corporate money into our political system after a century of understanding that this is deleterious not only to our political system but also to our system of commerce. It's gonna change our democracy and make it vulnerable to massive infusions of money. More . . .