Away from the blockbuster ruling handed down in the past few months……
The US Supreme Court has upheald law enforcement generally and turned their back on those who have been incarcerated…
The Supreme Court decided 66 cases in the usual way this last term, after full briefing and oral arguments. It also quietly issued eight other decisions.
Those rulings, more than 10 percent of the court’s docket, were brief and unsigned. Presumably meant to correct errors so glaring that they did not warrant extended consideration, they nonetheless illuminated a trend in the court’s work.
In most of them, one of two things happened. Prisoners challenging their convictions lost. Or law enforcement officials accused of wrongdoing won.
A recent article by Judge Stephen R. Reinhardt, who sits on the federal appeals court in California, connected the dots between the two kinds of cases, which do not at first glance seem to have much in common. But both turned on whether there is a precedent that “clearly established” a right to relief.
A prisoner who turns to the federal courts to challenge a state conviction must show that it was at odds with, in the words of a 1996 statute, “clearly established federal law.” A plaintiff suing over, say, a police officer’s use of excessive force must show, the Supreme Court has said, that the officer violated a “clearly established” legal right.
The Supreme Court, Judge Reinhardt wrote in The Michigan Law Review, has taken to using a narrow definition of what counts as “clearly established.” Instead of looking to general principles, he said, the court requires the prisoner or plaintiff to do something that is all but impossible in most cases: to identify a decision that concerned nearly identical factual circumstances…..Share on Facebook