The New Roberts Court on the Death Penalty:
The Supreme Court handed down three opinions on the death penalty this morning. All three cases involved jury instructions in cases from Texas. In all three cases, the lower court denied relief. This morning, the Supreme Court reversed each case 5-4, ruling in favor of the defendant in all three cases. In each case, Stevens, Kennedy, Souter, Ginsburg, and Breyer were in the majority; Roberts, Scalia, Thomas, and Alito dissented.
In two cases, Abdul-Kabir v. Quarterman and Brewer v. Quarterman,the Court found that the Texas state courts had "unreasonably applied" U.S. Supreme Court law on jury instructions, entitling the defendants to relief even under AEDPA. Chief Justice Roberts wrote a vigorous consolidated dissent in the two cases that accused the majority of being "revisionist" in light of AEDPA's deferential standard. According to Roberts, the majority was fudging the AEPDA standard to provide relief:
Finally, the Court ruled in Smith v. Texas that the Texas Court of Criminal Appeals had improperly read the Supreme Court's decision in Smith v. Texas, 543 U. S. 37 (2004), as permitting the state court to perform a harmless error analysis on remand. Justice Kennedy's majority opinion has a long procedural history and then says, in effect, "nope, we did that already." Justice Alito wrote the dissent.
Thanks to SCOTUSBlog for the early news and hosting of the Court's opinions.
In two cases, Abdul-Kabir v. Quarterman and Brewer v. Quarterman,the Court found that the Texas state courts had "unreasonably applied" U.S. Supreme Court law on jury instructions, entitling the defendants to relief even under AEDPA. Chief Justice Roberts wrote a vigorous consolidated dissent in the two cases that accused the majority of being "revisionist" in light of AEDPA's deferential standard. According to Roberts, the majority was fudging the AEPDA standard to provide relief:
We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to "clearly established" federal law. If the law were indeed "clearly established" by our decisions "as of the time of the relevant state-court decision," Williams v. Taylor, 529 U. S. 362, 412 (2000), it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that clearly established law was. Ante, at 1024. When the state courts considered these cases, our precedents did not provide them with clearly established law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path. Whatever the law may be today, the Courts ruling that 'twas always so -- and that state courts were "objectively unreasonable" not to know it, Williams, supra, at 409 -- is utterly revisionist.Of particular interest, neither Chief Justice Roberts nor Justice Alito joined the part of Justice Scalia's dissent that repeated the Scalia/Thomas view that the Courts have no business here at all. Justice Alito joined part of Scalia's opinion, but not that section; Chief Justice Roberts did not join Scalia's dissent at all (perhaps in part because he had written his own in the case).
Finally, the Court ruled in Smith v. Texas that the Texas Court of Criminal Appeals had improperly read the Supreme Court's decision in Smith v. Texas, 543 U. S. 37 (2004), as permitting the state court to perform a harmless error analysis on remand. Justice Kennedy's majority opinion has a long procedural history and then says, in effect, "nope, we did that already." Justice Alito wrote the dissent.
Thanks to SCOTUSBlog for the early news and hosting of the Court's opinions.
Because, you know, Texas just isn't getting to execute enough people.
Bit of a Ninth-Circuit day for the Fifth Circuit, wasn't it? Must skim the ops to see if any taunts were tossed in.
[OK Comments: C.F.W., I don't understand this comment. So in your view, the Supreme Court's job is to follow statutes if and only if the Justices believe that Congress "has business" in passing the law? I suppose I'm not surprised that Roberts missed that.]
I take issue with the title to your post. The cases decided today are probably not representative of the Roberts' Court's views on the death penalty in general, just reversing what it viewed as a rogue Texas and Fifth Circuit's judiciary's refusal to faithfully apply court precedent is this area. I highly doubt, however, that Justice Kennedy is inclined to generally reverse death sentences much more than say, the Chief Justice. (Although as you're a former Kennedy clerk, I recognize that you're much more qualified to opine on this subject than I).
[OK Comments: Respondent, I think you're wrong about Kennedy. See, e.g., Roper v. Simmons.]
On the contrary, I think Congress should be intimately involved in micromanaging the judiciary, since the judiciary is involved in micromanaging Congress. Tit for tat, after all. Every time they overturn an act of Congress, Congress can abolish another court. After decades of judicial activism, it should be clear that less courts = more freedom.
cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.
This is what the AEDPA requires (as interpreted in Williams v Taylor), and I suspect the majority is somewhat frustrated with this requirement rendering so many habeas cases effectively unreviewable.
Roberts may be right, that this is a problem for Congress to deal with. And that Congress has made its choice, and until it changes its mind he will go about finding ambiguity in the law and stating that it is not "clearly established." Certainly this case is not as strong as Carey v Musladin (buttons) case. But this is not a tenable situation for our habeas jurisprudence. Something has to give.
All Penry relief is collateral. If there is not something in Penry that is "clearly established," Penry has no meaning at all, since it is not a claim that can be asserted on direct review. Indeed, whatever you might "think" about the clarity of the law, the court has decided several penry cases under 2254. There is established law there. Maybe you agree with the variety of Supreme Court decisions to the contrary, but then you just don't really care about precedent and there's not much to say.
I wouldn't get too sidetracked about this "congress has no business" argument. That's just not the issue, and it would be a disservice to the majority to act like that is the holding.
The law here is close - but it's close on the question of what is clearly established. Yes, it is "confused," but not in the traditional sense that it is confused on the straight-up merits question.
People like Kent S. would like to have everyone believe that just because it is not clear what is clearly established, that this is sufficient ambiguity to bar relief. This is, of course, ridiculous. There's no logical limit if you are going to stack "clearlies." Does the law have to be clearly established, or does it have to be clear what is clearly established. How about clear about what is clear about what is clearly established.
The "mess" was all about what law was clearly established, so you can't circularly cite confusion as to what was clearly established as a reason for holding nothing is clearly established at all, if 2254(d)(1) is ever to mean anything.
Also, the Texas Court of Criminal Appeals is simply off the reservation. For those unfamiliar with the way they do business, it's a real eye-opener. I think the Fifth Circuit sometimes gets a bad rap because they're applying deference to a state court that already delivers the most lazy, cryptic criminal opinions in the country. All righteous anger about federal interference in state adjudication sounds truly absurd if you have state adjudications that lack any indicia of reliability.
But I think the point is that Abdul-Kabir involved a line of jurisprudence (Penry) that almost every serious Court-watcher of the last 20 years would agree is not emblematic of "clearly established" law and is practically the opposite of clearly established law, as demonstrated by the series of conflicting opinions and outcomes in the relevant cases. And that, I think, is what raised Chief Justice Roberts's ire.
It's telling that the best defense of the majority's opinion seems to be "AEDPA is a bad statute," rather than "that was persuasive legal analysis."
"almost every serious Court-watcher."
Where are you eating lunch, so to speak? I'm not going to blow sunshine and pretend that the jurisprudence is perfect, but you betray your own unfamiliarity with the subject matter when you say something like that.
Lockett Law is well established. The problem isn't Penry it is the continuing viability of Jurek since Lockett. The cases below, as JPS keenly points out can't be squared with Lockett.
The Chief pointed out a small eddy in a wider sea of 8th Amendment jurisprudence. Texas has always been an outlier, an exception to 8th Amendment law. The dissenters obviously wanted to focus on this Texas exceptionalism rather than admit the obvious, Graham &the other cases were exceptions not the 8th Amendment rule.
Ummm, so what was up with Justice Scalia's "justices du jour" comment? When I read it it was almost as if he was wishing the life tenured justices in the majoriy dead. Indeed, if Justice O'Connor was still on the bench this would have been 6-3.
With regard to what I "would like to have everyone believe," Kovarsky sets up a straw man and then knocks it down.
A grab-bag of answers:
1. Catholic moral thought has tended to see the legislator as creating or shaping the law but the judge as merely following or upholding the law. (Never mind that, in the case of abortion in the United States, the reverse is arguably just as descriptive.) Thus, Senator Kerry has more rope with which to hang himself than Justice Scalia has.
2. When you a bunch of bishops together, there is some diversity of opinion on capital punishment but none on abortion. Doctrinal documents indicated that elective abortion is always and everywhere wrong whereas capital punishment is wrong only under certain circumstances (such as those prevailing in developed countries with reliable legal systems and established penitentiaries).
3. "Liberal" Catholics tend not to like to use excommunication as a weapon to coerce conscience.
4. The real point of these excommunication scares is to peel off votes. Justice Scalia has lifetime tenure.
Roberts wrote a dissent, and knew how the AEDPA came about - from Lundgren in CA trying to work around 9th Circuit cases. The idea was to put a thumb on the scales of justice - in favor of death. A good federal courts professor would have given a C to a student who did not at least mention what is wrong (or questionable, and possibly unconstitutional) about the structure of the law - making the circuits and district courts irrelevant as creators of precedent.
cfw: how was it the "key point" in this case that "Congress has no business freezing the law as it was decided by a particular date by the USSCT"? This was pretty much a straightforward AEDPA case, whether you agree with AEDPA or not. In fact, I'm sure the majority would have gladly just ignored AEDPA if it could have, but so long as AEDPA is on the books and not ruled unconstitutional (which was certainly not at issue here), the Court has to abide by it. And so long as it has to abide by it, the majority opinion is awfully implausible.
The dissent is not persuasive unless it at least touches on the idea that telling judges what they can and cannot cite as precedent is unconstitutional (blurring lines between Article III and other parts of the US Const.). The dissent is materially incomplete, and the CJ knows it (from his days as an advocate - or assistant to advocates - in a DP case).
A mere velleity, I'm sure.
I'm sorry, I missed that - what page of the brief was that on? Or did an amici raise it? Or are you saying that the Supreme Court should strike down an act of Congress on grounds neither briefed nor argued by any party?
Justice Scalia, is that as true as everything else you've said?
Upon further reflection, I suppose that I should be surprised by little that Justice Scalia says. One who can suspend enough disbelief to accept the doctrine of transubstantiation or to speak of originalism and judicial restraint while defending his fellow wardheelers' ledgerdemain in Bush v. Gore can probably convince himself of anything. Perhaps, like the White Queen in Through the Looking Glass, Scalia can believe six impossible things before breakfast.
CJ is not writing for the majority so he is not in a position to strike anything down.
The implication of the dissent is that there is nothing in the least bit suspect constitutionally about applying stale law just from one court because Congress wants things done that way. Nonsense. If the current Congress said the Constitution must always be read as it was read in Roe v. Wade, or under the Warren Court USSCT cases, would that not strike you as a bit inconsistent with Marbury v. Madison?
The AEDPA is the same sort of officious inter-meddling in Court procedure that the CJ should guard against (or at least not ignore as if things have always been done that way). If Mr. "let's all stick together" is going to dissent, at least he could also talk about things a bit more foundational than how to read stale law.