No Supreme Court opinions in argued cases yet, but we got a second per curiam in a non-argued case. The Court summarily reversed the Sixth Circuit (Merritt, Martin, Moore) in the case of David Bobby (I guess that’s Ricky’s brother), Warden v. Robert J. Van Hook, 09–144, a capital case presenting the question of the standard for ineffective assistance of counsel on habeas.
The Court faulted the Sixth Circuit for considering the American Bar Association’s 2003 guidelines for assistance in capital cases, which were released 18 years after Van Hook’s trial, and for considering those guidelines as strict standards with which all capital counsel “must fully comply” rather than simply evidence of what effective counsel would do. The Court then reviewed the record in some detail and concluded that Van Hook’s counsel was constitutionally effective. The Court had relisted the case four times.
Of particular note, Justice Alito wrote a one-paragraph concurring opinion saying that “I see no reason why the ABA Guidelines should be given a privileged position in making that [effectiveness] determination,” since the ABA, however “venerable,” “is, after all, a private group with limited membership” whose views “do not necessarily reflect the views of the American bar as a whole.” Those of you who are on “sour grapes” patrol, note that the ABA gave Alito a unanimous “well-qualified” rating when he was nominated to the Supreme Court, and gave him a similar “well qualified” rating when he was put on the Third Circuit, although I don’t know offhand if that was unanimous. And, in response to a comment in the comment thread, it is noteworthy that there were no dissents–not even to the decision to proceed summarily.
Click here for the opinion:
I suspect the opinion was written by the Chief. What do you think?
troll_dc2 says:
Is it not interesting that there was no dissent from any of the Court’s so-called liberal members?
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November 9, 2009, 1:33 pmPLR says:
Speaking of groups with limited membership that do not necessarily represent the views of American lawyers as a whole...
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November 9, 2009, 3:13 pmLiberal Patrol says:
It may be worth noting that the ABA is usually considered a “liberal” organization–you know, pro-civil liberties in CrimPro cases (which means pro-defendant), that kind of thing (in addition to their other “liberal” views related to diversity in the legal profession, etc.)
The phrase “do not necessarily reflect the views of the American bar as a whole” can reasonably be read to mean that the ABA view is “different from that of the Federalist Society, whose views I tend to like a lot more, being the conservative pro-State/anti-defendant judge that I am.”
(As an aside, I think the ABA is great and generally agree with their policy positions. Of course, many lawyers do not. Just like some lawyers are Ds, some are Rs, and some not party-affiliated.)
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November 9, 2009, 3:25 pmMike B. says:
Love the Talladegha Nights reference.
Also PLR made me laugh out loud.
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November 9, 2009, 3:45 pmOne Man's View says:
LP — Make you a deal. When the courts start citing Federalist Society opinion as controlling law I’ll object to that too.
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November 9, 2009, 3:52 pmOrin Kerr says:
Liberal Patrol:
Unlike the ABA, the Federalist Society does not have a position on the appropriate level of representation in capital cases. I’m not sure how reasonable it is to read a statement as embracing something that does not exist.
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November 9, 2009, 3:57 pmJay says:
Didn’t Roberts say something pretty similar in an opinion last year? Or maybe it was an oral argument transcript I saw.
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November 9, 2009, 4:21 pmDave N says:
I am guessing that if the Conference had not been unanimous, there would have been oral arguments rather than a summary reversal.
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November 9, 2009, 6:16 pmMark N. says:
I agree the ABA shouldn’t be given law-like authority, as a private organization, but I’m curious to what extent it does or doesn’t represent the American bar as a whole. Last I recall, its membership comprised more than half of the total American bar. It’s possible it’s a politically skewed half, but the main skew I’ve seen data on is a bias towards BigLaw partners, which is more of a bias within the profession rather than one that’s easy to place on the normal political spectrum.
It’s interesting that at one time, up until the 1960s or so, the ABA was mainly criticized for being too politically conservative. In particular, it consistently took positions in favor of big business against labor groups, and against antitrust enforcement.
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November 9, 2009, 6:51 pmDjDiverDan says:
As a licensed lawyer who refused to keep paying dues to the ABA starting in 1990 (when I was a “Biglaw Partner” — or at least an equity shareholder in a “Biglaw” Firm), it wasn’t the pro-criminal defendant bias that drove me away. Indeed, though I am generally a libertarian/conservative, my limited experience with the criminal justice system (at least in Texas, which I certainly hope is not representative) convinced me that there was a very heavy pro-prosecutor thumb on the scales of justice, and I generally supported whatever pro-criminal defendant positions the ABA took. No, what drove me away from the ABA was my own view that the ABA’s leadership had been taken over by a coalition of Plaintiffs’ Personal Injury Lawyers and the far left on issues like Abortion, Gay Rights, and Diversity. Frankly, if the ABA had stuck to its mission of representing the Bar generally, and kept out of the political arena on “culture war” issues, I’d probably still be paying dues. And for anyone who seriously believes that the ABA supports “Civil Rights”, you either failed to read the ABA’s Amicus Brief in Heller, or you don’t think the Second Amendment deals with any civil rights worthy of protection.
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November 9, 2009, 7:40 pm