Actual shocker: Supreme Court isn’t the worst for once

It’s the latter half of June, which means everyone is bracing for disaster, thanks to the Supreme Court saving all the big cases for the end of the term. This year, they’ve sat on a lot of them, though they do this so often now that having 17 cases remaining is actually lower than previous years. 

Two opinions issued last Thursday weren’t ones everyone is waiting on with a mixture of worry and despair, like whether the court will give even more power to President Donald Trump to fire heads of independent agencies, whether there are enough terrible votes from terrible justices to uphold Idaho’s complete ban on trans athletes, and whether there are any justices who are so far afield from the constitution that they vote to get rid of birthright citizenship. 

But while Thursday’s decisions don’t have the staggering scope of those cases, they’re nonetheless consequential. They also made for some very strange bedfellows. 

First up: U.S. v. Hemani, where Trump’s Department of Justice finally found one type of gun regulation it liked: illegal drug users, even intermittent ones, even medical marijuana patients, cannot have guns.

Unfortunately for the DOJ, this stance runs headlong into the court’s current Second Amendment jurisprudence. In 2022’s New York State Rifle & Pistol Association, Inc. v. Bruen, the court’s conservatives went spelunking through history to declare that all firearms regulations must be “consistent with the Nation’s historical tradition of firearm regulation.” 

This newly invented test led to courts invalidating gun control laws if they couldn’t find some sort of equivalent regulation from back when we had muskets. Here, there were actually founding-era laws that were roughly equivalent, barring “habitual drunkards” from owning firearms. However, Justice Neil Gorsuch’s opinion for a unanimous court explained that while the founders loved to pound some brews, that didn’t make them “habitual drunkards” as it was understood at the time. Instead, that term applied only to people who drank so much, so routinely, that they were deprived of their “ordinary reasoning faculties.” 

Intermittent drug users, said Gorsuch, are not equivalent to those founding-era habitual drunkards. Since there was no “historical tradition of firearm regulation” that barred less-than-habitual drinkers from owning guns, a modern law barring casual drug users from owning guns was unconstitutional. 

If this discussion feels oddly familiar, it’s probably because this was the law under which Hunter Biden was convicted. Perhaps he should reach out to Trump’s DOJ and ask about a pardon?

No billionaire backers, no paywalls. Daily Kos news exists because of YOU, our small-donor community. Now, we need your help. Please donate today.

All jokes about Hunter Biden aside, this statute has been rampantly abused to lock up Black and brown people in droves, and this decision takes one of those tools away. 

Also, make sure to peep the concurrence from Justices Samuel Alito and Elana Kagan, who very possibly may have never written a concurrence together, but joined forces here to basically say that everyone smokes weed now, and marijuana is just modern alcohol, man. 

The DOJ lost again in Hunter v. United States, a case about what due process is owed to criminal defendants. 

When defendants agree to plead guilty, that often includes an “appeal waiver,” which is exactly what it sounds like: the defendant gives up their right to appeal. 

In theory, this makes sense. The bargain is that a defendant gets a better deal than they would at trial and the government gets finality and the end of the case. However, that theory doesn’t work in practice because a defendant has pretty much zero power compared to the vast power the government wields. 

Additionally, when defendants take a plea and waive their right to appeal, they don’t have complete information about what their ultimate sentence might be. Prosecutors make recommendations to judges as part of plea deals, but the judge ultimately determines the sentence. 

Here, when Hunter was sentenced, the judge imposed an unexpected condition, requiring Hunter to take any prescribed mental health medication once he was on supervised release. But Hunter never had an opportunity to negotiate that forced medication requirement because that requirement didn’t exist until the judge handed down his sentence—after Hunter had waived his right to appeal. 

Hunter tried to appeal his sentence—not his conviction—saying the appeal waiver shouldn’t bar him from challenging the medication requirement as unconstitutional. Lower courts rejected that argument, but in an 8-1 decision written by Justice Kagan, the court held that appeal waivers were unenforceable “when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.”  

Justice Gorsuch’s concurrence, joined by Justices Sonia Sotomayor and Ketanji Brown Jackson—see? Strange bedfellows—came in hot. Gorsuch called out how “the jury trial has given way to a conveyor belt of plea bargains” and that “when confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence.” 

The concurrence begins to lay the groundwork for dismantling plea bargaining as it currently exists, where the parties are in no way equal. It highlights exactly how unbalanced things are, such as how the waiver completely bars a defendant from appealing, no matter what, while the government remains completely free to appeal anything it doesn’t like.

Unsurprisingly, Gorsuch came to this conclusion by yammering on about what was happening in the 1800s or whatever: “Two hundred years ago, it was likely unimaginable that almost every federal criminal case would be resolved by plea bargain.”

Look, whatever it takes. If this is how to get Gorsuch and other conservatives to sign on here, so be it. 

And now, we wait to see how quickly the court will get around to those remaining 17 opinions and just how bad things will be. 

Click here to check out this story on DailyKos.com.

We're not asking for much

The average donation to Daily Kos is just $9.44. These gifts may seem small, but they’re a big deal to us—in fact, they’re our largest source of income. We couldn’t keep going without them. Will you join thousands of other Daily Kos readers and donate $9.44 right now to help us close our funding gap?