#SCOTUS is hearing a challenge today to a federal #law prosecutors used to charge >350 people who attacked the Capitol on #Jan6.
>100 have been convicted & sentenced under the statute for obstructing or impeding an ofcl proceeding—the joint session that convened to confirm Biden’s victory.
The case could impact #Trump’s federal trial in DC for trying to remain in power, 2 charges he faces are based on the same #obstruction statute.
#SCOTUS’ ruling, likely to land in late June, has the potential to undo the convictions & sentences of those who have gone to trial or pleaded guilty, & upend the charges still pending for many more.
3 #Jan6 defendants already had their sentences reduced. #ClarenceThomas is back after an unexplained absence from Monday’s court session.
Before arguments began Mon, Chief Justice John Roberts announced in court that Thomas would still participate in the cases, based on the briefs & transcripts.
#ClarenceThomas was first to ask a question, asking #JosephFischer’s attorney a very specific question about his reading of the #obstruction statute. “How do we determine what these provisions have in common. Do we look after the ‘otherwise’ or before?” he asked. Critics have said Thomas should not have any role in #Jan6-related cases because his wife, #GinniThomas, was involved in efforts to undo the results of the 2020 election & attended #Trump’s rally the morning of the Capitol attack.
Justice #ClarenceThomas — lobbed the first challenge to Solicitor General Elizabeth Prelogar’s argument in favor (shocker) of the #obstruction of Congress #convictions.
“There have been many violent protests that have interfered with proceedings,” Thomas said. “Has the government applied this provision to other protests in the past? And has this been the government’s position throughout the life span of the statute?”
#ElenaKagan kicked off her questions for Fischer’s atty, Green, by referring to #ClarenceThomas’s earlier comments. #KetanjiBrownJackson asked Green to respond more fully to a #AmyConeyBarrett question. The callbacks from the court’s liberals to its conservative members appear to be skepticism that the #obstruction statute can apply only to #evidence tampering.
The #law doesn’t say it applies to someone who “otherwise spoils evidence,” Kagan noted. “It says otherwise obstructs a proceeding.”
For #Alito & #ClarenceThomas, past case is roadblock to siding with rioters A case from 2008 was brought up repeatedly during today’s oral argument, & it helps explain why the votes of the court’s conservatives are hard to predict.
In Begay v. United States, #SCOTUS ruled that the word “#otherwise” in the Armed Career #Criminal Act could not cover drunken driving convictions, because it was not similar enough to the other examples listed— “burglary, arson, or extortion” or “use of explosives.”
Chief Justice #JohnRoberts ruled in favor of that narrower reading.But Justices #Alito & #ClarenceThomas, the only other 2justices who are still on the court today, did not.In a dissent written by Alito,they said reading “#otherwise” to mean “limited to”equally purposeful, aggressive acts “does not follow the statutory language.” When asked what earlier case best supported his argument that #obstruction of Congress only covers evidence tampering,Green responded:“Begay is our best case for sure.”
“I’m not a fan of Begay,” #Alito acknowledged. Justice Elena #Kagan said she wasn’t swayed by Begay either, because in 2011 a majority of the court — including Alito & #ClarenceThomas — ruled the opposite way in a case involving someone fleeing police.
“A few years later, we said, ‘Where did that come from? We made it up!’ And we get rid of the whole thing,” she said. “So that’s not a great advertisement for” Joseph Fischer’s take.
Justice #ClarenceThomas is back at the Supreme Court this morning after missing Monday’s arguments. The court did not provide an explanation for his absence yesterday. #SCOTUS
The Supreme Court Still Has an Ethics Problem
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Consider the ethics code the justices released in November. It largely excuses their transgressions: “For the most part these rules and principles are not new,” reads the introduction, implying the acceptance of luxurious vacations and participating in cases where they have clear bias is acceptable. ... There’s no judicial gift ban.
“How Justice Thomas’s ‘Nearly Adopted Daughter’ Became His Law Clerk
Justice #ClarenceThomas gave Crystal Clanton a home and a job after she left a conservative youth organization in controversy. Then the justice picked her for one of the most coveted positions in the legal world.”