Category: Supreme Court

13

Expertise and the Blawgosphere

TortureRack.jpgA recent, well-publicized, comment thread over at the VC caught my attention. In it, Professor Ilya Somin explained his silence on the habeas/torture legislation as a combination of humility and utility maximization:

I try to limit blogging to issues where I have a comparative advantage: that is, questions on which I can say something useful or interesting that is unlikely to be said by others. I do not regard the VC as a forum for me to air all aspects of my world view, or even all of my views on contentious political issues. Little purpose is served by my simply repeating the same points on torture, detention or any other issue that have already been made by dozens of others.

Moreover, I take seriously the implications of some of my own scholarly work on political ignorance. Merely knowing a few basic facts that can be gleaned from perusing a newspaper is not enough knowledge to conclude that I have something original and important to say about an issue, except in very rare cases where the issue in question is unusually simple. My experience as an expert on political information is that there are far more issues that are more complex than most nonexperts believe than the reverse. In this regard, my general expertise on political information helps me keep tabs on my lack of expertise on specific issues.

Marty Lederman commented:

The odd thing is figuring out why many of the VC bloggers have not been *interested* in becoming more informed about these questions, and about this legislative initiative — *not* because they are bloggers or even legal bloggers (heaven knows we don’t want every legal blog to pretend to be expert in such questions), but because many of them are committed *libertarian* bloggers who are obviously impassioned and informed about many other arrogations of state power and threats to individual liberty.

It is a debate with some bite, I think, for this blog. We aspire to be a general interest law blog, with mostly serious content. But we have demonstrated little collective interest in the habeas/torture problem. Sure, we’ve had a few posts, but nothing like the sustained attention given by Balkinization, or Opinio Juris. The question I wonder about is whether a blog that claims to be a general interest legal forum has a duty – if it is to be respected – to weigh in the big legal questions of the moment.

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4

It’s Time for the Supreme Court to be Heard

microphone.jpgWe are heading into the first full Supreme Court term in 19 years with a new Chief Justice, John Roberts, who is sure to consider changing some of the Court’s policies. So it seems worth asking once again why the Court does not immediately release audio broadcasts of all oral arguments.

Same-day release of oral argument audio tapes was unheard of until December 2000, when the Court permitted it in Bush v. Gore. Since then, the Court has several times allowed the immediate release of oral argument audio tapes in high profile cases, such as those concerning the rights of Guantanamo Bay detainees and challenges to affirmative action programs in higher education. But the vast majority of oral arguments are inaccessible to anyone who cannot wangle a seat at a Supreme Court argument. An official at the Court’s Public Information Office said only that it was the Court’s “tradition” to withhold tapes of oral arguments for release until the start of the next term, months after the cases have been decided. The Court should rethink that practice.

Listening to the arguments provides insight into how cases will likely be decided and perhaps even a view of how future cases presenting related issues will be resolved – information that is too important to be reserved to the handful of Supreme Court bar members who can make it into the courtroom. Although transcripts of oral arguments are published on the Supreme Court’s website, they are not available until approximately ten days after the argument, and in any case a cold transcript is no substitute for an audio recording because the tone of voice, pace of response, and emphasis on certain words and phrasings is lost.

I was in the courtroom in 2002 for the oral argument debating the constitutionality of Virginia’s cross-burning law, and I can attest that only someone who heard the argument could have felt the power of Justice Clarence Thomas’ comments on the history of cross-burning, or understood the impact of his words on the justices’ view of that case. More generally, only those who hear the justices speak can detect sarcasm or disbelief in their voices, or know when they are truly asking questions and when they are making pronouncements about how the case should be decided.

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12

Tied Up in the Tenth Circuit

tied_up.jpgI have been litigating a case in the Tenth Circuit that produced an unusual result. I lost before the panel, but a strong dissent from Judge Ebel convinced the Tenth Circuit to rehear the case en banc. Twelve judges sat on the case. On May 17, 2006, just a week after the en banc argument, I received the Court’s per curiam opinion announcing that it was evenly divided, 6-6. The Court thus affirmed the district court and vacated the panel opinion without issuing any law for the circuit. This frustrating result has created a mini-debate among those I have consulted about filing a cert. petition in the Supreme Court. Some of the experienced Supreme Court practitioners with whom I have discussed the case are convinced that the 6-6 split increases the likelihood that the Supreme Court will grant cert., while others believe that the lack of any precedent on this issue in the Tenth Circuit detracts from its cert-worthiness. I would be very interested to hear from anyone with an opinion on the matter whether they think the Tenth Circuit’s tie vote makes this case a better, or worse, candidate for Supreme Court review. (Obviously, getting the Court to grant review is always a long shot; I’m just interested to know how people think this odd result from the en banc court will affect my chances).

For those who are interested, here is a little background information on the case: My client, Cornelius Peoples, filed suit in the Kansas District Court against prison guards employed by Corrections Corporation of America (CCA). Mr. Peoples, a federal prisoner, alleges that guards at CCA’s Leavenworth, Kansas, facility failed to protect him from attacks by other prisoners even after he repeatedly requested that he be removed from his cell block for his own safety. Claiming a violation of his Eighth Amendment rights, he brought suit under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. Although it’s clear that Mr. Peoples could have brought a Bivens action if he were incarcerated in a government-run prison, the circuits are divided on the question whether prisoners can sue private prison guards for constitutional violations. It has been an interesting case to litigate, but I am sorry that I have not been able to get a better result for my client.

3

Was Korematsu a “Legitimate” Supreme Court Decision?

Kim Roosevelt and I are debating the legitimacy of Korematsu v. United States over at my blog IsThatLegal. Kim’s arguing that the decision was wrong but nonetheless “legitimate” because it proceeded from a valid principle of deference to military decisionmaking, and I’m disagreeing.

Check it out, and share your thoughts in the comments, either here or there.

1

Justice Kennedy Swinging Left?

One of the questions I had going into this most recent Supreme Court term was the effect that Justice O’Connor’s impending departure would have on Justice Kennedy. While O’Connor was on the Court, she and Justice Kennedy were universally identified as the key swing justices, but the label was far more appropriate for O’Connor than it was for Kennedy. In the 136 5-4 cases in which the Court’s (more) liberal bloc held together during the period between OT1993 and OT2004, Justice O’Connor supplied the “liberals” with a fifth vote far more frequently than Justice Kennedy (32 times compared with Justice Kennedy’s 17). It goes without saying that the voting pattern of both O’Connor and Kennedy remained decidedly conservative during this period, since the (more) liberal bloc, unable to attract either of the swing justices, lost most of those 5-4 cases.

Following the Court this past term, I developed the impression that Justice Kennedy was swinging to the left more than he had in the past. But I did not try to put a number on that gut feeling until the term ended. Looking at the OT2005 statistics compiled by Tom Goldstein and his crew and by Georgetown, there’s some interesting evidence that Justice Kennedy might be shifting his voting pattern a bit.

During the 1993-2004 period mentioned above, Justice Kennedy provided the fifth vote to the more liberal four only 12.5% of the time. During this past term, however, that number increased (by my count) to almost half (5) of the (12) close cases where the four liberals held together against the conservative justices (Rapanos, LULAC, Randolph, Hamdan, and House — did I miss any?). And in Clark v. Arizona, Justice Kennedy dissented with Justices Stevens and Ginsburg against a majority consisting of Roberts, Scalia, Thomas, Alito, and (doh!) Souter.

This is obviously too small a sample size to make any generalizations, but it will be interesting to see whether the trend continues next term. Still, there seems to be some reason to hope that Kennedy might pick up some of the slack left by O’Connor’s departure. I don’t want to make too much of this, though. Justice Kennedy still sides with his more conservative bretheren most of the time. And, as Rapanos shows, he can be stingy with his fifth vote, which means that when the more liberal justices win, the victories are likely to be incremental at best.

7

Is Erroneous Conviction More Likely In Capital Cases?

Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that “among all prosecutions homicide cases suffer an unusually high incidence of false conviction.” He explained this phenomenon as due to “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent”. Doug Berman, at Sentencing Law and Policy, takes serious issue with this claim. writing:

Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four “liberal” Justices might actually believe it is true.

Unfortunately, like a couple of his commenters, I think there is a good chance that Souter is right and Doug is wrong. Why? At least six reasons.

1. The plurality, if not majority, of criminal cases involve a crime witnessed by a police officer where arrest followed immediately. In these cases – from drug cases, to DUI, to disorderly conduct – error rates are likely low. This is true for two reasons. First, notwithstanding their competitive urges, officers have relatively little incentive to lie. (This may be a bit less true in officer assault cases, where disciplinary or tort consequences for offender injuries hinge on asserting that the defender was the cause of the problem.) Second, when the arrest follows immediately after the offense, there is very low risk of misidentification. Civilian assaults – including homicides – involve seriously higher risk of jury error. In assault cases involving unknown assailants, identification errors are a significant problem. The incidents are often quick and unexpected, and witnesses have little opportunity to observe what really occurred. Cross-racial identification problems infect the accuracy of ID’s in some cases. Poor line-up and photo array techniques further undermine accuracy of these identifications. And despite all these problems, witnesses are typically very confident that their testimony is accurate. Unfortunately, juries often rely on this confidence factor to “believe” eyewitnesses; the problem is that confidence is not a proxy for accuracy. Witnesses are sure they’re telling the truth, but they are often wrong. Thus capital cases, and cases lacking officer observation more generally, involve more guilt error than average.

2. Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

3. In capital cases, defense attorneys frequently do not mount serious innocence defenses during trial for fear that, if the defendant is convicted, he or she will appear less remorseful at the punishment phase. This is basic strategy in any capital case. The sentencing tail typically wags the guilt/innocence dog.

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5

Scalito No More!

In today’s decision, U.S. v. Gonzalez-Lopez, Justices Scalia and Alito broke into separate camps on the issue of counsel choice. Scalia, writing (surely with contrarian joy) for the liberal majority, held that a court’s improper denial of an individual’s counsel of choice was a constitutional error requiring automatic reversal. Alito, dissenting – and not respectfully either! – argued that there was something wrong with the idea that a person could end up with a better lawyer than he’d have preferred, but still score a new trial.

I’ll post at a bit more length in a little while. But I thought it interesting to see these supposed doppelgangers divide so neatly. (And even more so to see a little attitude show through in the opposing opinions.)

Mind you, I’m not holding my breath.

0

Parole After Samson

Yesterday, in Samson v. California, the Supreme Court held that the Fourth Amendment does not prohibit police officers from conducting suspicionless searches of parolees. Justice Thomas argued that prisoners are subject to suspicionless searches. And because, in his view, parole is essentially a prison sentence that continues on the outside, the state retains the right to continue those searches during parole. Thomas made a clear distinction between those on probation (who have greater privacy rights) and those on parole. Stevens, writing for Breyer and Souter, argued that this decision constitutes an expansion of police power because it allows, for the first time, suspicionless searches in the absence of governmental “special needs.”

The dissent correctly views the decision as a doctrinal shift, but it is only one more step in a lonstanding move towards a “common sense” (i.e., defendant unfriendly) approach to criminal justice. Frankly, the Fourth Amendment horse left the barn when Humphrey’s campaign against Dick Nixon fell short.

The more interesting questions for me involve the long-term implications of Samson. The dissent states that only one or two states allow searches of the type experienced by Samson. I have to think that most states wil now join the bandwagon. DA’s will rarely lose a Fourth Amendment suppression motion submitted by a parolee. Other than states with a special interest in parolee privacy – and I have yet to meet that state – I would expect most jurisdictions to encourage officers to conduct these suspicionless searches. (Will an officer have to know she’s searching a parolee? Or will she get the free-pass search so long as she has probable cause to believe she’s about to search a parolee?)

Samson also creates new incentives for DA’s at sentencing. There is now a clear distinction between probation and parole: only parolees are subject to suspicionless searches. A savvy DA will ask for sentences that involve long paroles rather than long probations. (Thus, for example, a defendant who had served nine months awaiting trial might get an indeterminate sentence like “9 months to 5 years”, rather than simply “time served plus five years probation.” On the flip side, perhaps this enhanced supervision will make parole boards (or judges) a hair more comfortable placing inmates back on the street earlier in their sentence. (I’m not holding my breath.)

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1

Grutter Redo, Part 3

Recall that in a earlier post, I wrote about Judge Kozinski’s concurring opinion in the 9th Circuit ruling which upheld the Seattle school choice plan. His view was that rational basis review was preferable and strict scrutiny inappropriate because while the “program does use race as a criterion, [it does so] only to ensure that the population of each public school roughly reflects the city’s racial composition.” Kozinski’s position raises a number of interesting questions — at least one of which I alluded to before — the potential appeal of his approach to Justice Kennedy. But now I want to focus on the normative question which lies at the heart of Kozinski’s approach.

Let us set aside for a moment the Court’s view, which it has repeatedly reaffirmed in cases like Adarand, Grutter and Johnson v. California, that strict scrutiny review must apply to all racial classifications. The question I want to pose is this: is there a meaningful distinction between the racial preference that was at issue in Grutter, and the racial classification scheme that is challenged in the K-12 cases the Court has recently accepted. To assist you in answering this question, I’ll provide a quick review of the use of race in the two situations.

Grutter concerned the University of Michigan Law School’s admissions policy which sought to enroll a “critical mass of underrepresented minority students.” In short, while the policy did not set aside a fixed number of seats in the incoming class for minority group members, it did consider race or ethnicity “flexibly as a ‘plus’ factor in the context of individualized consideration of each and every applicant.” Even though race was used flexibly (no bonus points or set asides as was the case in Bakke), there is little doubt that with respect to some candidates, race was outcome determinative. That is, race was outcome determinative for some white candidates in the sense that minority group members with identical qualifications would have been admitted to the Law School while they were not. (We can address the standing difficulties raised under this scenario at a different time.)

Contrast the Law School’s admissions plan in Grutter with the Seattle school choice plan. Under the Seattle plan, race was used as a tiebreaker. In the first instance, students are given their choice of schools. It is only when a school becomes oversubscribed and racially imbalanced that the racial tiebreaker comes into play, and even then it only operates on the margins; effecting only schools where the “student body differs by more than 15 percent from the racial make up of the students of the Seattle public schools as a whole.” Finally, we should note that under the Seattle plan, no student is denied an opportunity to attend a public school in the school district; all students are placed in some public school within the district. Thus, Judge Kozinski’s view of the Seattle plan was, “that a student is denied a school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual’s aptitude or ability.”

Do you agree? Are the Grutter and Seattle plans distinguishable? Is it really true that one plan attaches “stigma” to a frustrated applicant while the other inflicts no such stigmatic harm to the students? Isn’t one argument that the stigmatic impact of each plan is a matter of degree. If that’s the case, then perhaps Kozinski is right after all that a heightened form of rational basis review is superior because it would allow the Court to take all of the relevant facts into consideration. Unless you think strict scrutiny, in the race context at least, already performs this function.

6

Grutter redo, part 2

The Court’s acceptance of the two K-12 cases raises so many interesting questions that it is difficult to know where to start. For this post, I’ll quickly recap the facts and ask a question about Justice Kennedy’s potentially pivotal role in deciding the cases. Later posts will address other issues raised by the cases.

Both cases deal with “voluntary” desegregation plans where there is no court order otherwise requiring desegregation. In both cases, the school districts sought to break the link between residential and school segregation. Given the racially segregated nature of the neighborhoods within the school districts, an uncontrolled school choice plan would have likely replicated such segregation within the schools. Instead, the districts sought to both preserve neighborhood school choice and produce more integrated public schools. As a general matter, one school district used race as a tiebreaker. In this district, students were given their choice of schools, race notwithstanding; race came into play as a tiebreaker for oversubscribed schools that were racially imbalanced. In the other district, the school board established black student enrollment ranges. Administrators then used race as one factor among many (residence, school capacity, popularity, student’s choice, etc.) to achieve enrollment within those ranges.

Both the 6th and 9th Circuits upheld these plans, applying the Grutter “student body diversity” rationale to the K-12 context. In this post, I want to focus on just one question: Justice Kennedy’s role. While it is true that two new justices have joined the Court since Grutter, I think it highly likely that both Roberts and Alito will vote to strike these plans down (we can debate exactly how they will do this at a later date). I believe Kennedy’s vote will be pivotal. While it is true that Kennedy dissented in Grutter, essentially arguing that the Law School’s affirmative action plan was not narrowly tailored under the strict scrutiny test, I believe there may be a way to reach him here. But how? Enter Judge Kozinski.

In the 9th Circuit opinion, Judge Kozinski wrote an interesting concurrence. In it, he argued that a heightened form of “rational basis” review ought to apply to the case. His theory was that the Seattle plan wasn’t really an “affirmative action” plan given that it concerned admission to K-12 education. According to Kozinski, it had none of the “defects” associated with other racial preference schemes because “there is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about the individual’s aptitude or ability.” Thus, from Kozinski’s perspective, strict scrutiny need not apply — and instead a less deferential form of rational basis review would do. Given Kennedy’s position in Romer and Lawrence, will Kennedy be persuaded by Kozinski’s argument? If so, it would allow him to uphold the plans and to distinguish his position in Grutter, where arguably, strict scrutiny had to apply.