UPDATE: The Globe has now substantially revised its story and has removed the egregious errors noted below (although the Globe doesn’t note a correction or otherwise indicate that the article has changed). Thank goodness someone over there reads BMG. I’m leaving this post up as a cautionary tale about trusting what you hear in the media about Supreme Court decisions.
Today the US Supreme Court threw out a decision by the Mass. Supreme Judicial Court that had upheld the conviction of a woman for possessing a stun gun. I’ve already explained what happened, and what the upshot of the opinion is. To sum up very briefly: a 6-0 majority of the Court issued a brief per curiam (“for the Court”) opinion explaining that the SJC got the 2nd Amendment analysis wrong and telling it to try again. Two Justices (Alito, joined by Thomas) did not join that opinion, instead issuing a separate, much longer opinion setting forth different reasoning, and concluding – as the majority opinion emphatically did not do – that MA’s stun-gun ban violates the 2nd Amendment. Of course, since Alito’s opinion is only for himself and Justice Thomas, it is not legally binding.
This post is about how the media sometimes gets things completely wrong when it comes to legal issues. This story, recently posted on the Globe’s website, is a godawful jumble of things that are right, things that are confusing, and things that are dead wrong. Anyone reading it would almost certainly walk away with a serious misimpression of what happened today. Here we go.
The nation’s highest court said Monday it will decide whether Massachusetts’ ban on stun gun ownership violates the Second Amendment, with two justices delivering a withering rebuke to the state Supreme Judicial Court for upholding the law.
Wrong! The Supreme Court emphatically did not say that it is going to decide the case in the future. To the contrary, it has already decided the case, as my previous post explains. As of now, there are no further proceedings scheduled in the Supreme Court for this case. It might agree to hear a subsequent appeal in this case after the SJC issues a new opinion, but then again, it might not.
[T]wo US Supreme Court justices — Justices Samuel Alito and Clarence Thomas — were outraged Caetano was prosecuted at all. And in a 10-page order released Monday, the two justices publicly chastised the SJC, calling their legal reasoning “simply wrong.”
Confusing! It’s true that Alito and Thomas appear to think that Caetano never should have been prosecuted, and that they called the SJC’s reasoning “simply wrong.” However, the opinion that Alito (joined by Thomas) wrote is not an “order.” It is, rather, a concurring opinion (technically, an opinion concurring in the judgment) for two Justices that carries no force of law whatsoever. Justices write concurring opinions all the time in order to explain their own view of issues before the Court. But those opinions, like the one Alito issued today, are just that – opinions.
The US Supreme Court overturned Caetano’s conviction.
Confusing! This goes back to the difference between vacating and reversing a lower court decision, as I explained in my previous post. The Globe story doesn’t use either word, instead using the imprecise “overturned,” which sounds to me more like reversing than vacating. Caetano’s conviction could still be upheld when the SJC reconsiders the case.
The action taken by the US Supreme Court does not, by itself, throw out the stun gun ban. That will likely be decided in the future when the full court hears arguments and then issues a ruling in the coming months.
Wrong! As I’ve already explained, the full court is not going to hear arguments or issue a ruling in this case. It has already issued its ruling, and the case before the Supreme Court is over. So, while it’s true that the stun gun ban has not been thrown out, it will be the Massachusetts SJC, not the US Supreme Court, that will decide that question in the first instance when it reconsiders the case. And the case may never make it back to the Supreme Court.
But the SJC was ordered to start over and reconsider their legal conclusions using the guidance provided by Alito and Thomas, who wrote that the Massachusetts court completely misunderstand the reasoning of the landmark 2008 Supreme Court case known as Heller.
Wrong! Wildly, utterly, completely, 180-degrees wrong!! This one is really important. Again, the Alito-Thomas opinion is not an opinion for the Court, and therefore does not carry any legal force. The only opinion whose guidance the SJC must now follow is the unsigned per curiam that explains the errors the SJC made. Alito’s and Thomas’s views are interesting, but they are the views of only two Justices – and, in fact, they almost certainly do not represent anything close to a majority of the Supreme Court, especially now that Justice Scalia is gone. So in no way was the SJC told that it must use the “guidance” of the Alito opinion when it reconsiders Caetano’s conviction.
The SJC also ruled that stun guns do not qualify for Second Amendment protections because they did not exist in the 18th century when the Constitution was written. The federal justices rejected that argument.
“Electronic stun guns are no more exempt from the Second Amendment’s protections, simply because they were unknown to the First Congress, than electronic communications are exempt from the First Amendment, or electronic imaging devices are exempt from the Fourth Amendment,’’ the justices wrote.
Confusing! It’s true that the Court majority rejected the notion that weapons that didn’t exist in the 18th century aren’t covered by the 2nd Amendment, so the first paragraph is accurate. But the quotation that follows in the story’s next paragraph, which the story attributes to “the justices,” is actually a quotation from the Alito opinion. So again, the story fails to understand the difference between the legally binding opinion and Justice Alito’s separate views.
What a mess. I understand that the minutiae of Supreme Court opinions can be confusing, and that these stories need to be written quickly. But those details are critical, because they are at the heart of what the Court actually did or did not do. Today, anyway, the Globe failed its most basic responsibility: to tell its readers what happened.
This was not the Globe’s finest moment, but the larger point is that the Court failed to provide an easily comprehensible explanation of its actions and thus undermined its effectiveness as a governing institution.
I know I’m used to reading these kinds of things, but still.
Bob, you really think it’s the job of the United States Supreme Court to pander to the teeny intellects at the Boston Globe and that it delegitimizes itself if it does not? These are (obviously) difficult and subtle concepts not generally susceptible to easily comprehensible explanations. Anyone familiar with Supreme Court practice could have explained the case to the general public (though not as well as David Kravitz, of course); that’s the paper’s job, not the Court’s. And Bob — how’ve you been?
clearly explaining complex legal issues is gift to the public; thanks David. There are some highly competent Supreme Court reporters out there (L. Greenhouse, for example) but, wow, the Globe really butchered this.
Is it a possibility that the SJC will choose to do nothing, accept the voiding of that conviction, and leave the question of the legitimacy of the outright ban hanging?
The SJC has to decide the case, and currently the conviction is in limbo. The SJC could decide to entertain new briefing and argument, or just reconsider it on the existing record, but I can’t imagine that they won’t issue a new opinion either upholding or throwing out Caetano’s conviction.