Tag Archives: U.S. Supreme Court

Justice Roberts’s Humpty Dumpty Court

As the Supreme Court ends another Term the attention continues to be on the Justices themselves and their voting patterns.  This past Term featured a higher than average number of unanimous opinions.  But as Adam Liptak from the Times has noted, these opinions seemed to mask disagreements among the Justices.  Why then the unanimity?  One hypothesis is that the Justices are trying to shore up the institutional integrity of the Court having become more sensitive to or cognizant of the charge that the Court with its numerous sharply divided opinions along idealogical lines is a nakedly political institution.  But does this sort of unanimity (some might call it unanimity for the sake of unanimity), if that is what it appears to be, really enhance the legitimacy of the Court in the long term?

One can argue that it does not.  In its most benign form, the Court is simply “kicking the can down the road” in its refusal or inability to grapple with sensitive legal issues, even if doing so would lay bare the ideological fault lines within the institution.   Another more cynical  interpretation is that the “conservatives” on the Court, having made institutional integrity the central focus of the Court’s agenda, are challenging their more liberal colleagues to be the ones to blink first.  “Dissent if you dare” may now be a common refrain by Chief Justice Roberts, the supposed architect of the Court’s recent approach toward greater unanimity.  And the conservatives can afford to wait since they, more so than their liberal colleagues, are the ones who have prevailed in cases which have presented the most contentious issues of the day.  Why fix it if it ain’t broke? or so the saying goes.

The downside of all this is that Court deprives the country of the guidance it needs to govern its affairs.  Fostering unanimity means declining more cases or accepting more “easy” cases — ones that perhaps don’t carry the kind of political baggage that cases about gay marriage or contraception do — or delaying to another day a ruling on a broader but more contentious issue in a case that the Court has accepted  in favor of a more narrow but less contentious point.  There are sound reasons for these approaches, the details for which are beyond the scope of this post.  But institutional legitimacy is not one of them.

It is foolish to think that fractured decisions deprive the Court of credibility.  The cases that reach and are accepted by the Court are often ones that have already split the lower courts.  Add to this the fact that judges by nature have their own predispositions and prejudices, it should come of no surprise that cases often end up being decided by a bare majority.  And this is as it should be since fractured opinions also foster healthy debates among the justices themselves and in the public at large on the correctness of one view over another.

The Court’s legitimacy comes not from the actions of the Court itself but from the views and beliefs of the people whose rights and duties are the subject of  the Court’s decisions.  So long as the Court stays true to its duty of interpreting and when necessary making law that best reflects its view of what the Constitution requires, then its legitimacy as a governmental entity is sound.  This is so even if one or more members of the public disagree with how the Court interprets the Constitution.

What is more important from the standpoint of the Court’s legitimacy is the public’s understanding and acceptance of the decisions that are actually issued.  This  necessarily takes time and it requires the involvement (in the form of outreach, education and so forth) of individuals and groups who often  have no relation to the Court.  But none of this is possible if the Court makes an effort to decide fewer cases or skirts an issue in a case just because it is one whose resolution would divide the Justices.

The Imperial Supreme Court

The Supreme Court has officially entered its summer recess, leaving yet another controversial term in its wake.  States will now be able to gerrymander at will without first subjecting their plans to federal oversight.  Laws that are passed to discriminate against gays are prone to being struck down by a court as unconstitutional.  And affirmative action is still a laudable if not legal concept, although that too may change soon.

That the legal landscape has again shifted should come as no surprise.  Laws are prone to be amended or reversed from time to time, especially when they are subjected to the scrutiny of the country’s highest court.  That these changes might anger some and please others is nothing new either.  Controversy, after all, is something that often propels a case to the Supreme Court and  leads to its review by the justices, which is almost always at their discretion.  Not that debate should not be had on the cases that make it to the court.  But I think it hard pressed for anyone to argue that a robust and sustained debate on, say, whether a law is based on outdated data (the Shelby County, Voting Rights Act case) or whether the moral underpinnings of a law cause it to be discriminatory (the Windsor, DOMA case), can be had between the covers of  the legal briefs on which the justices rely to make their decisions.  This is especially true considering that any decision the Supreme Court makes to uphold but especially to strike down a law has significant consequences, not just on the people who are the subject of the law, but on those whose responsibility it is to make and enforce the law.  This, it seems, is a point Scalia touched on in his dissent in Windsor where the Court found DOMA unconstitutional.  But there too, Scalia was being disingenuous, as there is no love lost between Scalia and what he sees as the homosexual agenda: to Scalia, debate should be had in lieu of Supreme Court intervention, but only when it might prevent an otherwise discriminatory law from being swept into the morality dustbin.

The trend we see of the Supreme Court wading into almost every area of law is a troubling one.  It is a reflection of a government that is broken and dysfunctional, where no one accepts another’s position unless he is of the same party or political ideology.  And those on the losing end inevitably vow, with increasing success, to have the disfavored piece of legislation overturned.  As a result, we have a government that is increasingly governed by nine unelected officials, and, some may say, one such person in Justice Kennedy.  Say what you will about the character and ambitions of those who choose to run for public office or the lack of competition one often sees on an election ballot, when elected officials displease their constituents, the remedy is to vote them out.  Needless to say, Supreme Court justices are not subject to the same pressures; indeed, their reign at the Court may last decades and is subject to almost no oversight at all.  Not that we should get into the business of electing judges.  But to have every piece of major legislation, both old and new, consistently land in the Supreme Court with the prospect that it may be reworked, gutted, etc., on the ideological preference of a group of justices or just one justice is a prospect no one should savor.

Of course, if a law must be struck down, that is the job of the courts.  No one should be made to suffer under an unjust law.  If neither the legislature nor the executive are willing to act, then it is the province and, in some situations, the prerogative, of the court to take up the slack.  But the primary concern should not be “how do we kill this law”, but “how can we get the law that we desire”.  The former almost certainly leads to greater polarization and distrust of our government institutions, while the latter encourages and requires participation in the process that is self-government, which, in almost any scenario, provides greater legitimacy to the final outcome, even if it is unsatisfactory to some.

Slow And Steady Wins the Race

The Supreme Court will determine this Friday whether to grant certiorari in the Chaidez matter, the case in which the Seventh Circuit held that Padilla does not apply retroactively.  Presumably there is already a pool memo floating around the Court in which a clerk has made a recommendation as to whether cert. should be granted.  The Government has already made up its mind, however, having informed the Court that it agrees with the Petitioner (Chaidez) that cert. should be granted to resolve the Padilla retroactivity issue.

Aside from Chaidez, it will be interesting to see how many cert. petitions now pending before the Court will be “held” by the Court for “GVR” (grant, vacate and remand) treatment in light of its decision in Chaidez — assuming, of course, the Court does grant cert. on Friday.  It will also be interesting to see if Justice Kagan will have to recuse herself because, perhaps, she might have represented the Government back when the Padilla case was before the Court  (the Government filed an amicus brief in Padilla urging the Court to affirm the Supreme Court of Kentucky; yet another example of the current administration’s cramped and antagonistic view of immigrants’ rights ).  Should Justice Kagan have to recuse herself, there is a very real possibility that the Court may deadlock on the retroactivity issue, in which case the Seventh Circuit’s decision would be affirmed.  Not a good scenario for immigrants or their counsel.  The unlikely savior in such a situation may be the Chief Justice, however.  I say this only because the Chief Justice has indicated recently a discomfort with the Court’s rightward trajectory, not to mention the fact that he joined the majority in Vartelas, the Court’s recent decision which, in effect, limited the applicability of the draconian anti-immigrant legislation that is the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009-546.

For those who are interested in reading the cert. materials in Chaidez, they are available here via the SCOTUS blog website.

2011 Year in Review

Thanks to those who visited Invisible Man in 2011.  I hope this blog has been of use to some.  The issue of Padila retroactivity, to which I have devoted a lot of my blogging, is still percolating throughout the courts and remains very much a hot topic among criminal defense and immigration law attorneys, especially those who toil in the trenches of postconviction litigation.  For 2012, I predict that the U.S. Supreme Court will finally step in to decide the issue of Padilla retroactivity, with a decision due in late 2012 or early 2013.  I believe the Court will find Padilla retroactively applicable (how could I predict otherwise?!) and Justice Kennedy will write the decision for the majority, although Justice Alito will, in one way or another, be key in shaping the contours of the Court’s ruling on Padilla retroactivity.

WordPress.com has provided me with a year end report for 2011, which I have posted below for everyone’s reference.

Thank you all again for taking time out to visit the Invisible Man.  I look forward to another year of blogging on Padilla and other issues.

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The WordPress.com stats helper monkeys prepared a 2011 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 9,400 times in 2011. If it were a concert at Sydney Opera House, it would take about 3 sold-out performances for that many people to see it.

Click here to see the complete report.

Cert. Denied in Morris v. Virginia – UPDATED

Followers of Padilla retroactivity might be disappointed to hear that the U.S. Supreme Court denied cert. today in Morris v. Virginia, the first case to present the question of whether Padilla qualified for retroactive application.  The decision denying cert. can be found on page 15 of the Court’s order list from 10/3/2011.

This ruling should come as no surprise, however.  The Virginia Supreme Court in Morris never really addressed the Padilla retroactivity question head on, if at all, and the issue is still percolating throughout the federal and state courts.

As to the latter, a helpful reader has informed me that the Eleventh Circuit Court of Appeals will soon rule on the Padilla retroactivity issue.  The case is United States v. Marisella Carmen-Iglesias (Case No. 11-12316) from the Southern District of Florida.  I will post the briefs and provide updates as they become available.

UPDATE: the “helpful reader” who alerted me to the Carmen-Iglesias case in the Eleventh Circuit was nice enough to send me the appellate briefs.  The Government’s brief can be found here, the appellant’s/defendant’s here.

Equal Justice Under Law

Photo courtesy of the Brennan Center for Justice

I recently finished reading the biography of Justice William Brennan, considered one of the most influential jurists in United States Supreme Court history.   Brennan is perhaps best known as the liberal bulwark of the Court in a tenure that spanned the reign of three Chief Justices, Warren, Burger, and Rehnquist.

It is no surprise that Brennan’s liberal leanings, exhibited most prominently in his rulings from the Court, made Brennan a much-reviled figure among conservatives, who disliked him as much for his views as for his success in turning those views into law.  These critics complained that Brennan acted beyond his authority as a judge whose role it is to simply apply the law, not make it.  Instead, the criticism goes, Brennan would act as kind of a super-legislature, grafting his personal views of morality and human dignity into his judicial opinions.

Whether these accusations have any basis in fact is perhaps open to dispute.  To be sure, Brennan cannot be considered a judge whose ultimate fidelity lies in the words of a statute instead of in his convictions of right and wrong.  With a properly framed question, Brennan, I am sure, would have admitted as much if he were still alive.  Indeed, a popular story of Brennan’s tenure as Supreme Court justice is that he would invariably ask his clerks who have just come on board for a new term what the most important rule is when it comes to judging on the Supreme Court.  After fielding incorrect answers like “due process” or “equal protection” he would raise up five fingers and say that the most important rule in the Court is to attain votes from five justices in a case, which constitutes a majority on the Court.  Activist? Perhaps.  Result-driven?  Maybe so.

But focusing on such mechanisms of judicial rulemaking do nothing to advance the debate of what we consider to be a model society that is governed by the rule of law rather than one that is run by the whim of the individual.  As Brennan’s “rule of five” vignette demonstrates, judging necessarily involves the employment of policy preferences; after all, if judging was as simple and straightforward as applying the law to the facts, as is the myth most prominently trumpeted perhaps by Chief Justice Roberts (his judge as umpire calling balls and strikes analogy comes to mind), why aren’t all cases before the Court decided on a unanimous basis? And this is true whether the judge is considering the case of a derelict landlord who fails to fix a tenant’s leaky faucet or one involving more weighty constitutional issues like whether the government can prohibit flag-burning consistent with the First Amendment (it cannot).  There are exceptions to this phenomenon, of course, but the simple truth is that judges are most of the time lawmakers, only in different garb.

I would argue that the sooner we recognize and accept this, the sooner we can move on to more substantive discussions as to which judge-made laws, and the principles which underlie them, are more consistent with what we view as a just and equal society.  Fortunately, Brennan got past this a long time ago and, as a consequence, achieved unparalleled success in changing the direction of this country through his rulings, one that sought to recognize and protect the dignity of the individual above all else.

Padilla Going Retro?

The National Immigration Project of the National Lawyer’s Guild has recently issued a Practice Advisory on the retroactive applicability of Padilla v. Kentucky.  It concludes that Padilla should be applied retroactively by the lower courts because it does NOT create a new rule of criminal constitutional law.  The practice advisory can be downloaded here.

Also, a recent decision from Judge Seybert in the Eastern District of New York touches upon but does not decide the issue of retroactive applicability of Padilla — she assumes for the sake of argument that it does apply retroactively and then goes on to reject his Padilla claim on the merits.  The case is United States v. Obonaga (E.D.N.Y. June 24, 2010) and can be accessed via Google Scholar here.

Justice Stevens’ Last Hurrah (Maybe)

Last week the U.S. Supreme Court  handed down a significant decision in Padilla v. Kentucky written by Justice Stevens, which held that  criminal defense attorneys must now advise their clients of the immigration consequences of a criminal conviction.  Prior to this ruling, most state and federal courts scoffed at such a requirement, chastising counsel only when he or she misadvised a client about whether the risk of deportation posed by a conviction.  One upshot of those decisions was the encouragement of counsel, particularly the uncaring and lackadaisical ones, to remain silent when it came to the point of a case where the worlds of criminal procedure and immigration law intersected.  After Padilla, that will no longer be the case.  And, it is, of course, too early to tell whether the post-Padilla regime will result in better representation for clients.

What I am puzzled about is whether the rule announced in Padilla will have any retroactive effect as to convictions that became final after the Court decided Padilla, particularly in postconviction/collateral proceedings.  An initial review of Justice O’Connor’s seminal decision in Teague v. Lane brings me to the conclusion that Padilla could NOT be applied retroactively even with reference to Justice Harlan’s “ordered liberty” exception, i.e., that the rule announced in Padilla would be “the kind of absolute prerequisite to[a trial's] fundamental fairness that is “implicit in the concept of ordered liberty.” “

For those postconviction/criminal procedure gurus who may happen to stumble across this blog entry, I would greatly appreciate your collective thoughts on this issue.

The Morally Ambivalent Justice

Ronald Dworkin has a great piece in this week’s New York Review of Books on the Sotomayor confirmation hearings.  In it he criticizes the modern myth that judges are only supposed to apply the law rather than make “controversial judgements of political morality” – a point that I have made in the past.

Here is an excerpt from the article:

Sadly, practically everyone concerned in judicial confirmation hearings—senators and nominees—has an overriding interest in embracing the myth that judges’ own political principles are irrelevant. Sotomayor was, of course, well advised to embrace that myth. Her initial statement, and her constant repetition of it, made her confirmation absolutely certain; she could lose the great prize only by a candor she had no reason to display. She was faced by a group of Republican senators who had no interest in exploring genuine constitutional issues but wanted only to score political points, if possible by embarrassing her but in any case to preen before their constituents. They scoured her record of extrajudicial speeches for any sign that she actually doubts the myth so they could declare her a hypocrite who is not faithful to the law after all.

Democratic senators had no wish to challenge the myth either. They only wanted to protect her from questions that might supply ammunition to her opponents, so they offered her endless opportunities to repeat her empty promise to follow the law. Only President Obama, in a remarkably candid statement, seemed to challenge the myth. The law, he said, decides 95 percent of the cases but that leaves 5 percent to be decided in the judge’s “heart.” Senator Jon Kyl of Arizona asked Sotomayor if she agreed with Obama on this point. No, she roundly declared, I do not.

So the minuet was choreographed, and any illumination ruled out, before the hearings began. Both supporting and opposition senators asked Sotomayor whether she approved of recent Supreme Court decisions they believe of particular concern to their constituents: about abortion, of course, but also gun control, the president’s power to defy Congress, his power to detain suspected terrorists indefinitely, and the permissibility of a city taking private property for private development. They wanted to be seen as knowledgeable and concerned by what worried voters.

You can find the entire article here.

“The Machinery of Death” in Georgia and Beyond

Over the past week, the death penalty has received considerable media coverage here and across the nation.

First came news that the Georgia Public Defender Standards Council had asked Fulton County to repay the State of Georgia for fees and expenses that were incurred in defending Brian Nichols, the escaped prisoner who went on a murderous rampage in downtown Atlanta, killing a judge, among other public officials.  This comes on the heels of a recent, somewhat critical report in the AJC of the growing cost of Nichol’s legal defense, which I wrote about here.  At the same time, according to the AJC, the State has crafted plans to cut the budget for funding public defenders in Georgia, which could result in furloughs of a month or more.

Over at the Times is a story on the growing number of judges who are writing dissents that are critical of the death penalty and the manner in which it is being imposed.  Here is an excerpt from that article:

In dozens of capital cases in recent years, appeals court judges, some of whom have ruled in favor of the death penalty many times, have complained that Congress and the Supreme Court have raised daunting barriers for death row prisoners to appeal their convictions, and in many cases the judges have taken on their colleagues.

“There is an increasing frustration among federal judges throughout the system,” said Eric M. Freedman, a critic of the death penalty who teaches on the subject at Hofstra Law School.

Mr. Freedman predicted that the level of dissatisfaction would increase. “Judges are likely to have less and less patience for being hogtied by legalistic mumbo-jumbo,” he said, “which prevents them from reaching fair results.”

The law that generates much of the judges’ ire is the Antiterrorism and Effective Death Penalty Act of 1996. Since its passage, the act has been cited in a half-dozen to two dozen dissents a year, often in language forceful enough to rival Judge Fletcher’s. The law, championed by legislators who believed prisoners were abusing the federal appeals process, restricts federal court review of state court decisions in death penalty cases and puts strong limits on the ability of condemned prisoners to file habeas corpus petitions to get their cases reconsidered.

The full story is available here.

And today comes news that the Supreme Court has essentially given a reprieve to Troy Davis, who is on death row in Georgia after having been convicted of killing an off-duty police officer.  In an unsigned one-paragraph order, the Supreme Court sent Davis’ case back to the trial court and instructed it to conduct a factual hearing to determine “whether evidence that could not have been obtained at the time of trial clearly establishes [Davis'] innocence.”  The order was met with a dissent by Justice Scalia (joined by Justice Thomas), in which he says, among other things, that the trial court was being sent on a “fool’s errand.”  Justice Stevens, joined by Justices Breyer and Ginsburg, countered with their own take on the law, stating that “[t]he substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”

Liptak of The Times has the story here, the AJC, here, and SCOTUS blog, here.

Finally, yesterday saw the start of the trial of Sharon Keller, the Texas judge who is accused of having intentionally denied a death row inmate access to the courts.  For those of you who are unfamiliar with the case, here are the basic facts, as per the Times:

On Sept. 25, 2007, Judge Keller put in a 10-hour workday and went home around 4 p.m. to meet a repairman. That morning the United States Supreme Court had effectively suspended lethal injection as a manner of execution by accepting a challenge to its constitutionality in a Kentucky case.

Largely on the basis of the justices’ action, lawyers for a Texas death row inmate were putting together an appeal to stave off execution. An assigned duty judge was waiting at the courthouse for any last-minute appeal on the inmate’s behalf.

Around 4:45 p.m., the general counsel of Judge Keller’s court called her to relate a request to file paperwork after 5 p.m., the usual closing time for the court clerk’s office. Judge Keller replied that the clerk’s office closed at 5 p.m. A few hours later, the inmate was executed.

The full story is here.  Grits for Breakfast provides coverage of the Keller case, links, and some interesting commentary here.

My thoughts on these stories and the general death penalty brouhaha is as follows:

(1) Like most of the hot button issues, those in power who are in a position to effect change (politicians, judges, lawyers, journalists), even those who are opposed to capital punishment, are not likely to take action.  Why?  Because it’s another issue that can be, and has been, used to divide the masses, generate controversy, etc., which, in turn, means these individuals get to maintain their positions of power.

(2) The notion that judges must and do slavishly follow and apply the law is a false one.  The corollary being that there is a moral component to the law.  Is there any other reason why we consistently refer to the Supreme Court as having a liberal and a conservative wing?   Anyone who tells you differently is being disingenuous at best and manipulative at worst.

(3) Criminal defendants and their attorneys are shafted on a regularly basis by everyone and anyone who cannot fathom the reason why people commit crimes in the first place.  Hint: it’s rarely if ever because that person is predisposed to committing criminal acts.

- AW