#SCOTUS, October 17, 2016.pic.twitter.com/pwylviNATS
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Sotomayor's dissent is an ineffective assistance of counsel (Sixth Amendment), not cruel/unusual punishment (Eighth Amendment), dissent.pic.twitter.com/s11UAGsbqh
Is Sotomayor going to be the court's big defender of an expanded vision of the Sixth Amendment now (she also wrote Hurst, recall)?
Breyer has objected to the whole Sixth Amendment line of cases that preceded Hurst; concurring eventually on Eighth Amendment grounds.
Just re-read his Apprendi dissent — joined by Rehnquist! He was so dismayed: "'~why~ would the Constitution contain such a requirement'?"
Reminder: Conservatives' big win post-Scalia was Utah v. Strieff. Breyer joined the conservatives in 4th Am case.https://www.buzzfeed.com/chrisgeidner/supreme-court-weakens-protections-against-unconstitutional-p?utm_term=.wn7qyO7Bz3#.jeL6j70rgP …
In any event, that's what I'm thinking about in Elmore today. Not surprising to see Breyer staying away from Sotomayor's dissent here.
Maybe Kagan voted for cert but didn't join Sotomayor's dissent b/c she didn't think summary reversal was appropriate — we don't know!
Justices don't release their votes on cert or stays. They can pen dissents, but don't have to do so, so we often don't know the vote.
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