The Chief's Last Line in Abdul-Kabir:
Chief Justice Roberts' dissent today in Abdul-Kabir v. Quarterman ends with a serious zinger aimed at Justice Stevens.
By way of background, this case considered whether the Texas courts had misapplied "clearly established" U.S. Supreme Court law in a death penalty case. In the dissenters' view — which I tend to think is right, although I'm not an expert in this area — the majority opinion is pretty much a fudge. The majority wanted to grant relief, so they tried to make the law seem "clearly established" when it really wasn't. To do this, the majority had to get a little creative in what kind of U.S. Supreme Court law it thought could "clearly establish" the law. Of particular note, today's majority opinion by Justice Stevens twice cites a dissent Justice Stevens wrote in a 1988 case for authority that a particular view of the law was "clearly established."
At the end of his dissent today, Chief Justice Roberts mocks the idea of getting clearly established law from a dissent. Here's the last paragraph:
Ouch. Of course, whether it's wise to use zingers like that can be hard to tell.
Thanks to Amy Howe for flagging the passage.
By way of background, this case considered whether the Texas courts had misapplied "clearly established" U.S. Supreme Court law in a death penalty case. In the dissenters' view — which I tend to think is right, although I'm not an expert in this area — the majority opinion is pretty much a fudge. The majority wanted to grant relief, so they tried to make the law seem "clearly established" when it really wasn't. To do this, the majority had to get a little creative in what kind of U.S. Supreme Court law it thought could "clearly establish" the law. Of particular note, today's majority opinion by Justice Stevens twice cites a dissent Justice Stevens wrote in a 1988 case for authority that a particular view of the law was "clearly established."
At the end of his dissent today, Chief Justice Roberts mocks the idea of getting clearly established law from a dissent. Here's the last paragraph:
Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented clearly established federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.(I believe "tunc pro nunc" means "then for now," suggesting that the dissent will always have this effect.)
Ouch. Of course, whether it's wise to use zingers like that can be hard to tell.
Thanks to Amy Howe for flagging the passage.
I know a judge who had to issue a bunch of divorce decrees nunc pro tunc. A lawyer had gone off his rocker, and prob. crooked to boot, took a bunch of divorce clients' fees, assured them he got the divorce, and never even filed them. So you had a bunch of people who *thought* they were divorced, and some had remarried. A judge really can do anything -- even change history!
"Nunc pro tunc" and "tunc pro tunc" are not the same.
I suspect, however, that Roberts said "nunc pro tunc".
Roberts' dissent here seems different to me for whatever reason, maybe because it lacks Scalia's arrogance. I can see Stevens and Roberts chuckling about it over coffee. I highly doubt Breyer found Scalia amusing.
Quintus?
On the question of whether this stuff costs dissenters votes or whether it's "wise," I guess I'm not sure how that would work. On the subject of capital punishment, I think at least 8 of the Justices are probably entrenched. The quest for AMK's vote probably happened a while ago, and once the votes were set, JGR probably just decided to write the best dissent he could.
I like the zinger.
I suspect, however, that Roberts said "nunc pro tunc".
Helpful hint: If you "suspect" what the Chief Justice said in a written opinion quoted a few lines above where you're writing, you might scroll up and see what was actually written before announcing your suspicion to the world.
He said "tunc pro nunc," reversing the usual legal phrase in order to make a rhetorical point about the majority's use of a dissent in the past ("then") to established what the law is "now."
Good point on Breyer. I just read that case so it was fresh in my mind. Hard to prove until we see their papers or their clerks break their vows, but I suspect that O'Connor and Kennedy went the other way more often in later years partly because they felt alienated (lame as that sounds) by some of Scalia's rhetoric. I'm not so much saying that in a particular case Scalia lost a vote because he was mean, but rather that people he had attacked repeatedly stopped listening to him over time.
I'm on record on this site as believing that Scalia has cost himself more votes than he has won himself with the tone of his dissents (and sometimes majority opinions). See, e.g., College Savings Bank, 527 U.S. 666 (687-88) (1999) ("Accordingly, Justice Breyer reiterates (but only in outline form, thankfully) the now-fashionable revisionist accounts of the Eleventh Amendment set forth in other opinions in a degree of repetitive detail that has despoiled our northern woods.")
Not just the tone of his dissents, but their content. This isn't the first time I've seen one of scalia's "the end of the world dissents" invoked against him later - see the majority opinion in Cole, n. 16. He says that the only way ever to square Penry 1 with Jurek is for the jury to be able to give mitigating evidence "full mitigating effect."
I might also note that an en banc panel of the Fifth Circuit, in Nelson v. Quareterman, had recently overruled this line of cases. The lawyers asked the court to GVR, but the Court declined. So whatever criticism is to be heaped on the "liberal" supremes should also be heaped on the "liberal" Fifth Circuit.
What makes you think Stevens is there now?
Or maybe it's just a typo. :)
I might also note that an en banc panel of the Fifth Circuit, in Nelson v. Quareterman, had recently overruled this line of cases. The lawyers asked the court to GVR, but the Court declined. So whatever criticism is to be heaped on the "liberal" supremes should also be heaped on the "liberal" Fifth Circuit.
Wasn't the clearly-established date different in Nelson? It seems to me that the Teague argument is stronger here.
It's not as if this "clearly established law" standard was being applied by idiots, it's to be applied by judges. A reasonable judge would know that without additional instructions, in a case nearly identical to Penry, would be constitutionally infirm. Robert's opinion is no better than The Chewbacca defense. It's very difficult to swallow that somehow the Steven's opinion is infirm for citing two opinions in Franklin, not even necessary for its holding, while Roberts focuses on how the dissents in Johnson &Graham characterize the Court's opinions in those cases as relating to Penry.
The fact is, the question under Penry, Johnson, Graham, etc. is whether the mitigating evidence to be presented can reasonably fit within the Texas categories as mitigating or not. Like Penry, evidence of a bad childhood or lack of impulse control is mitigating in that it reduces culpability, but is aggravating under the Texas categories because it increases the likelihood of future criminal activity. This is exactly unlike Johnosn, where the only characterization is youth, something which is mitigating under both categories, as it goes to deliberativeness, and, assuming that people mature, mitigates the likelihood of future criminal activity.
The real reason that the state court violated federal law is clear from the quotation of in Robert's opinion, it cites numerous Texas appellate &supreme court opinions that effectively eviscerated Penry. Things like saying extreme low IQ were somehow different than retardation for the purposes of Penry, Johnson, etc. This is the same kind of thing Roberts &co. are trying to do here, albeit with an even less persuasive method.
a citation to McFly v. Tannen, __ U.S. __ (1885, 1985, and 2015) (Zemeckis, J.)
Zooba:
"It's not as if this "clearly established law" standard was being applied by idiots, it's to be applied by judges."
Actually, the standard is routinely applied in the first instance by idiots - inmates, many of whom would not be inmates if they had normal IQ's.
Rather than tossing zingers in death cases, the CJ might have commented on this being a possibly unconstitutional statute - calling for application of stale law (perhaps 20 years out of date, in CA cases) decided only by one court (the USSCT).
I really am fond of Roberts, and this law is confusing, but the majority's reading is hardly "disgraceful." If you think it's so disgraceful, please explain why.
MS,
Wasn't the clearly-established date different in Nelson? It seems to me that the Teague argument is stronger here.
This is ticky tack, but Teague and 2254(d) are different, although I understand the temptation just to call the latter the former. Also, Nelson is pretty emphatic that the "clearly established law" goes back to Penry I, even though I believe Nelson's 2254(d) date was right after Penry II.
If we understand him to be making those citations because they demonstrate that a particular understanding of the law is "clearly established," then I don't see what the problem is that some of the citations are to dissents. Just because a particular holding is "clearly established law" doesn't necessarily mean that it will prevail in every given case.
For example, it is a clearly established rule of law that government may not infringe your right to free speech. It is also a clearly established rule of law that you may exercise your free speech rights in a dangerous manner. If the dissent quotes the first rule of law in a case holding the latter, does that make the "free speech" rule of law no longer clearly established? I don't think so; it just means that on a particular set of facts one "clearly established rule of law" had to give way to another.
Could that not be the same case with Stevens' citations? That they show a consistent understanding of the law (i.e. that it was "clearly established") over a long period of time. As well, in this case, the rule of law cited to by Stevens from his old dissents was also shared by the concurring opinions in those same cases.
"clearly established" law can't be at such a broad level of generality. The right has to be a specific right, not a general one.
And if the Supreme Court was following it at the time, then why was Stevens writing dissents claiming that it wasn't?
Rather than tossing zingers in death cases, the CJ might have commented on this being a possibly unconstitutional statute.
He might also have commented on ERISA, abstention doctrine, and the Confrontation Clause -- as these are all other subjects that, like the constitutionality of AEDPA, were not at issue in Abdul-Kabir.
the dissent choses not to deal with the post-99 cases that say what the clearly established law is.
That's because the state court ruling in question took place in 1999. It's that state court ruling that must be contrary to or an unreasonable application of clearly established law, under AEDPA. See the dissent at page 14 ("AEDPA ... does not require [state courts] to have a crystal ball.").
Zooba: I hate to resort to ad hominem attacks, but your understanding of the Penry line of cases is about on par with your understanding of the possessive form ("Robert's").
That's because the state court ruling in question took place in 1999. It's that state court ruling that must be contrary to or an unreasonable application of clearly established law, under AEDPA.
you are either not reading carefully or are not understanding the proposition. there are post-99 cases saying what the pre-99 clearly established law was. you are confusing this observation with the idea that there are post-99 cases saying what the post-99 clearly established law is.
Insulting people due to minor mistakes of grammar, spelling, and punctuation in a blog comment is in poor form. Try and address my comments on the merits. However, as pointed out by Kovarsky, you don't understand the basic concept of precedent, so I'm assuming you won't be able to.
i would add that not only was this conclusion the one reached by a majority of the supreme court, but also by the 17 judge en banc panel of the fifth circuit, which reads AEDPA more restrictively than any other court in the country, in nelson v quartermann.
Zooba, am I right that this last sentence was "in poor form"?
Are post-99 cases binding in their interpretation of pre-99 law? Are they even particularly informative?
This has always been an interpretive question that has interested me. Because of the language of 2254(d) and the role of the Teague bar before it, many habeas decisions aren't saying what the law "is" as much as what the law was at time T. Is the statement about what the law was at time T as binding as a statement about what the law currently is? I doubt it, but the Court seems unwilling to probe that interpretive problem.
I only had time to look for state court decisions. Perhaps someone else can look up federal ones. These examples show that "tunc pro nunc," while not common, has been used before as a mirror image of "nunc pro tunc." Some examples follow, with internal citations omitted and the phrase highlighted. Some of them are quite humerous.
1) People v. Green, 70 Cal. 2d 654, 661 (Cal. 1969)
2) State ex rel. Kierskey v. Kelly, 81 Miss. 1 (Miss. 1902)
3) In re Estate of Carroll, 202 Misc. 508, 514 (N.Y. Misc. 1952)
4) Schaffer v. Harris, 1975 OK Civ App 56 (Okla. Ct. App. 1975)
5) State v. Johnson, 635 P.2d 36, 38 n 1 (Utah 1981)
6) State v. Moya, 815 P.2d 1312, 1316 n 11 (Utah Ct. App. 1991)
He's just saying what most people already know. That the Court is just another legslature now, that elections don't really matter much because the court will just make up the laws, and that the darkness of this corruption is so huge that humor is the only way to deal with it in public.
I don't think the man on the street really believes that the "justice system" produces justice. Only an intellectual could believe something so stupid.
It means that he needs a fifth vote to put a stop to such behavior. It means you need to ensure that a Republican President is being inaugurated in January 2009.
And have a Republican majority in the Denate.
Corrected post.
Spectator:
And have a Republican majority in the Senate.
Constitutionality of the AEDPA is never "not at issue" in a DP case, as a matter of theory and standard practice amongst DP litigators. Why can the legislature tell the Court what precedent it can cite or not cite? If it is ok here, why not in detention of terrorists cases, or abortion cases? It is undemocratic (cutting out the lower courts) and violates the separation of powers doctrine (telling courts how to do their jobs) and the CJ can and should have mentioned that the issue is worth considering. If the stale USSCT cases being examined and applied had been decided by the Warren Court, you can bet the CJ would have said how can this be kosher. If the Congress said that the Constitution can only be interpreted by Article III judges as described in Roe v. Wade, would that be constitutional? If one has any respect for the concept of judicial review, Marbury v. Madison, etc., the issue is clearly debatable if not a slam dunk case of Congressional over-reaching.
However, there was another case this term that specifically dealt with the constitutionality of ADEPA and the court side-stepped the issue by doing a Teague v. Lane analysis and then saying, well, since it isn't a watershed rule under Teague, we don't need to get to the ADEPA quesiton. (Not that whether ADEPA bans all retroactivity is exactly clear, part of it mentions granting hearings when "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable").
I think some on the court would probably disagree that limitations on federal habeas petitions from state court convictions are unconstitutional, since there is no federal constitutional right for habeas review of state court convictions (only a right for federal review of federal court convictions).
The only thing particularly troubling is the 1 year limit on federal habeas relief, but the courts have not blinked at that.
That he's in touch with reality? (Grin)
The Justices are stuck with each other in a plural marriage that, unlike most marriages in this country, really is likely to last until its members part by death. Sowing bad blood, instead of cultivating mutual respect, is self-defeating.
I've written phrases like the one Roberts wrote in my legal briefs -- on first draft. But, sometimes with the nudging of a colleage and sometime just as a result of my better judgment, those kinds of phrases always come out of the brief before it is filed.
SCOTUS already has a "class clown" and his name is Associate Justice Scalia. It doesn't need another.
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