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“Eight Ways to Sunday”: Which Direction, Kentucky Supreme Court?

John K. Bush, Paul E. Salamanca March 25, 2007

Attempted synthesis of the rulings of Kentucky’s highest court threatens to go the proverbial “eight ways to Sunday.” For one thing, although Kentucky is not very populous and its Supreme Court sharply limits discretionary review, still literally thousands of opinions have been rendered by the Court and its predecessor, the Kentucky Court of Appeals, which prior to 1975 was the only appellate court in the Commonwealth. Also, great diversity of judicial philosophy among the Court’s members has resulted in sometimes warring opinions that make divergent points resembling the scattershot of a Kentucky dove hunter.

Alleyne v. United States - Post-Argument SCOTUScast

SCOTUScast 2-4-13 featuring Ryan Scott
Ryan Scott January 23, 2013

Ryan ScottOn January 14, 2013 the Supreme Court heard oral argument in Alleyne v. United States. The question here is whether the Supreme Court’s 2002 decision in Harris v. United States--that the Constitution does not require a jury to determine facts used to increase a mandatory minimum sentence--should be overruled.

To discuss the case, we have Ryan Scott, who is an Associate Professor at Indiana University Maurer School of Law.

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Alleyne v. United States - Post-Decision SCOTUScast

SCOTUScast 6-24-13 featuring Ryan Scott
Ryan Scott June 24, 2013

Ryan ScottOn June 17, 2013 the Supreme Court announced its decision in Alleyne v. United States. The question here was whether the Supreme Court’s 2002 decision in Harris v. United States--that the Constitution does not require a jury to determine facts used to increase a mandatory minimum sentence--should be overruled.

In an opinion delivered by Justice Thomas, the Court held by a vote of 5-4 that any fact that increases the mandatory minimum sentence for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt.  Accordingly the Court overruled its earlier decision in Harris, vacated the judgment of the lower court, and remanded Alleyne’s case for further proceedings.  Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Justice Thomas’s opinion as to Parts I, III–B, III–C, and IV, and Justices Ginsburg, Sotomayor, and Kagan further joined Parts II and III–A.  

Justice Sotomayor also filed a concurring opinion in which Justice Ginsburg and Justice Kagan joined.  Justice Breyer filed a separate opinion concurring in part and in the judgment.  Chief Justice Roberts filed a dissenting opinion, which was joined by Justices Scalia and Kennedy.  Justice Alito filed a dissenting opinion.   

To discuss the case, we have Ryan Scott, who is an Associate Professor at Indiana University Maurer School of Law.

[Listen now!]

Berghuis v. Smith - Post-Decision SCOTUScast

SCOTUScast 09-08-10 featuring Thomas F. Gede
Thomas F. Gede September 08, 2010

SCOTUScastOn March 30, 2010, the Supreme Court announced its decision in Berghuis v. Smith.  The question in this habeas case was whether under the Anti-Terrorism and Effective Death Penalty Act's habeas standards, the Sixth Circuit properly concluded that the Michigan Supreme Court unreasonably applied clearly established federal law as determined by the Supreme Court when it concluded that Michigan’s procedures for jury selection satisfied the Supreme Court's Sixth Amendment-based "reasonable cross-section" requirement.

In a unanimous opinion delivered by Justice Ginsburg, the Court held that the Michigan Supreme Court's rejection of the fair cross-section claim did not involve an unreasonable application of clearly established Federal law as determined by the Supreme Court, noting that the Court had never struck down any procedures resembling Michigan's and pointing to its earlier statement that "[t]he fair cross-section principle must have much leeway in application."  Justice Thomas filed a concurring opinion.

To discuss the case, we have Thomas F. Gede, who is a principal in Bingham Consulting Group and of counsel to Bingham McCutchen LLP.

Blueford v. Arkansas - Post-Decision SCOTUScast

SCOTUScast 05-25-12 featuring McGregor Scott
McGregor Scott May 25, 2012

SCOTUScastOn May 24, 2012, the Supreme Court announced its decision in Blueford v. Arkansas.  This case involved a state court jury that had announced it was unanimous against guilt on charges of capital and first-degree murder, but ultimately deadlocked on a manslaughter charge.  A mistrial was then declared and the jury discharged; there was no entry of a formal verdict.  The question before the Supreme Court was whether the Fifth Amendment’s Double Jeopardy Clause prohibited the prosecutors from trying the defendant a second time on the capital and first-degree murder charges.

In an opinion delivered by Chief Justice Roberts, the Court held by a vote of 6-3 that the Double Jeopardy Clause did not protect the defendant from being retried on the capital and first-degree murder charges.  Justices Scalia, Kennedy, Thomas, Breyer, and Alito joined the Chief Justice’s opinion.  Justice Sotomayor filed a dissenting opinion, which was joined by Justices Ginsburg and Kagan.

To discuss the case, we have McGregor Scott, who is a Partner at Orrick, Herrington & Sutcliffe, LLP.