Dan Epps

What do you think about that? I agree with you about the feel. And there's a sense in which it feels like the majority says, we just don't have confidence in this verdict anymore. Our confidence is sufficiently undermined that at this point we need a new trial.

What do you think about that? I agree with you about the feel. And there's a sense in which it feels like the majority says, we just don't have confidence in this verdict anymore. Our confidence is sufficiently undermined that at this point we need a new trial.

And even if it goes back and the Olympic Court of Criminal Appeals finds some new evidence or finds some new state law argument, we're not going to have confidence anymore. We just feel like... That's not an unreasonable attitude. There's just a question of whether it's something the court is allowed to do. Apparently, they are.

And even if it goes back and the Olympic Court of Criminal Appeals finds some new evidence or finds some new state law argument, we're not going to have confidence anymore. We just feel like... That's not an unreasonable attitude. There's just a question of whether it's something the court is allowed to do. Apparently, they are.

Also, Justice Thomas makes this sort of jurisdictional point, citing the newest edition of Hart and Wexler's Federal Courts. The first judicial citation to that? The first Supreme Court citation. I mean, it's just been in print for like a few weeks, right? Yeah, a month. I think it came out basically July 1st. I haven't looked to see if the lower courts have said it yet, but maybe not.

Also, Justice Thomas makes this sort of jurisdictional point, citing the newest edition of Hart and Wexler's Federal Courts. The first judicial citation to that? The first Supreme Court citation. I mean, it's just been in print for like a few weeks, right? Yeah, a month. I think it came out basically July 1st. I haven't looked to see if the lower courts have said it yet, but maybe not.

January 1st. Yeah, that's right. The other month. That says for state courts in particular, you know, the court has this norm. I think we've talked about this before in the show of when it reverses a state court, it says remand for proceedings not inconsistent with our opinion. Whereas when it rebands to a federal court, it's as consistent with our opinion.

January 1st. Yeah, that's right. The other month. That says for state courts in particular, you know, the court has this norm. I think we've talked about this before in the show of when it reverses a state court, it says remand for proceedings not inconsistent with our opinion. Whereas when it rebands to a federal court, it's as consistent with our opinion.

And that is supposed to maybe even convey that state courts have more freedom on rebands to do other stuff, to interject new issues of state law that there's no jurisdiction over and so on. So if you think that's an important principle of federalism, then the court seems to be violating it here or making an exception to it. I think that's right. Now, I was trying to chase this down.

And that is supposed to maybe even convey that state courts have more freedom on rebands to do other stuff, to interject new issues of state law that there's no jurisdiction over and so on. So if you think that's an important principle of federalism, then the court seems to be violating it here or making an exception to it. I think that's right. Now, I was trying to chase this down.

I couldn't totally chase it down. In 1867, when Congress amended Section 25 of the Judiciary Act, which is the statute that provides Supreme Court jurisdiction, appellate jurisdiction from state courts to the Supreme Court. and the amendment comes to the Supreme Court in a case called Murdoch v. Memphis.

I couldn't totally chase it down. In 1867, when Congress amended Section 25 of the Judiciary Act, which is the statute that provides Supreme Court jurisdiction, appellate jurisdiction from state courts to the Supreme Court. and the amendment comes to the Supreme Court in a case called Murdoch v. Memphis.

But the amendment, one of the things they did when they amended it was they said for the first time the Supreme Court is allowed to just award execution without remanding the case. This is arising from state courts. Just inner judgment. Yeah, because this had kind of come up. And so that seems to have gone away. It's not in the current iteration of Section 20 of the Judiciary. Oh, interesting.

But the amendment, one of the things they did when they amended it was they said for the first time the Supreme Court is allowed to just award execution without remanding the case. This is arising from state courts. Just inner judgment. Yeah, because this had kind of come up. And so that seems to have gone away. It's not in the current iteration of Section 20 of the Judiciary. Oh, interesting.

The statute no longer says that. And I didn't have time to chase down whether that's one of those things that... got left out of one of the codifications because everybody thought it was obviously true or that it was removed.

The statute no longer says that. And I didn't have time to chase down whether that's one of those things that... got left out of one of the codifications because everybody thought it was obviously true or that it was removed.

But there were these debates in the 19th century sometimes where state courts were thought to be obstreperous on remand and the Supreme Court finally wanted to step in and say, no.

But there were these debates in the 19th century sometimes where state courts were thought to be obstreperous on remand and the Supreme Court finally wanted to step in and say, no.

And so I think the majority is right that this is a thing they can do. I do think it's unusual. Yeah. And so I guess I would have liked a little bit more defense of doing it.

And so I think the majority is right that this is a thing they can do. I do think it's unusual. Yeah. And so I guess I would have liked a little bit more defense of doing it.