Okay, I'll go ahead and say it. Hamdan.
First of all, am I the only one who thinks that the Court was probably right on the merits (are the tribunals properly authorized) but who nonetheless thinks that Scalia and Alito have some very good points in their dissent? I am not at all convinced that the Court has jurisdiction in the case after the passage of the Detainee Treatment Act. And if the tribunals are illegal only because their procedures are inadequate, I am not sure that the remedy is to shut down the tribunals, rather than to simply demand that they follow proper procedures if they intend to have their judgments respected. As Alito points out, when the Virginia trial court dneis you your Confrontation Clause right, we don't declare the Virginia judicial system unconstitutional.
But the Supreme Court rarely lets niceties stop it from reaching the merits when it wants to get there, and it got there. I don't know enough to know for certain whether Thomas is right about the flaws in the majority's analysis, so instead I'll start with another remedial question. The Court says that Article 3 of the Geneva Convention applies to the detainees, meaning that the administration's claim that it didn't have to worry about complying doesn't hold. Meaning that a number of U.S. nationals have probably violated the Geneva Convention, and are possibly guilty of violating the War Crimes Act, whose punishment can be as high as death.
Marty Lederman says that there's a due process right to rely on the reasonable opinions of government officials. Should that apply here and how far should it go? When Southern soldiers and officers left the union on the basis of the constitutional opinions issued by Southern governors and attorneys general, I don't think it violated due process to punish them for their disloyalty at the termination of hostilities. But I agree with Marty that a contrary doctrine would discourage departmentalism. So what's to be done? The cleanest result would be a blanket presidential pardon for anybody who violated Article 3 in reliance on the now-repudiated O.L.C. memos. I don't think that reliance on the memos needs to be any more protected than that. What do you guys think?
All right,, let's talk about Clark first. I agree with PG that the decision was a relief. I am not sure that the Constitution contains any sanity requirement at all, let alone the one that was at issue in this case. Clark's due process argument really came down to the 70's-era debate about state-granted rights. Clark's complaint was essentially that having created a mens-rea-type element of a crime, Arizona had to give him a chance to prove that he didn't have it (and had to give him the chance to do it in this particular way). The first response one is tempted to make is that since Arizona doesn't have to make mens rea a requirement at all (murder could be a strict-liability crime), it is entitled to define and establish proof of mens rea however it darn well pleases.
True, that response is too quick by half. At its limit, it would allow the state to avoid any constitutional procedural protection. That is why substantive due process is intuitively joined with procedural due process, for better or worse. But anyway, no need to go that far in this case. This seems to be a bang-up job by Justice Souter.
For those who find Souter overinclined to meddle in a state's punishment scheme, as judged by his Marsh dissent, today's majority opinion in Clark v. Arizona ought to be heartening. It allows states to depart from the traditional M’Naghten insanity test (of which I first heard in A Time to Kill), so a paranoid schizophrenic who killed a cop can use a psychologist's evaluation to defend himself as insane, but if it does not convince the jury of his legal insanity, he cannot use it to point to a diminished mental capacity incompatible with the necessary mens rea for first-degree murder of a police officer. Roberts, Scalia, Thomas and Alito joined the opinion in full, and I get the impression that its 39 pages might have been shortened had it been written by one of them; Souter seemed to be trying to pick up additional votes with the care and length he put into it. Breyer agreed that M'Naghten was not the constitutionally required standard, but was concerned that state law will not be applied the way Souter thinks it is being applied, and therefore wanted to remand to the Arizona Court of Appeals to clarify that it would be, rather than affirm and assume the best. (Prof. Kerr is thus not exactly right in saying that Breyer joined Souter's opinion.)
Stevens and Ginsburg joined Kennedy's dissent, which has an almost Scalian tone of annoyance with the majority, despite its self-description as "this respectful dissent":
So there are really two Marshes worth talking about. Marsh One, which I tried unsuccessfully to provoke interest in, is the debate between Scalia and Stevens about whether it is worth the Supreme Court's while (or within the Supreme Court's Judicial Power) to take the case in the first place. To paraphrase Justice Stevens, Who cares if Kansas is playing fast and loose with the Federal Constitution, so long as nobody gets killed? (This argument is what I glibly and half-unfairly called "Stevens's Nullification Doctrine." No takers yet.
Marsh Two is the fight between Scalia and Souter about the death penalty, and whether or not "death is different" in a way that judges ought to take note of. [There is a Marsh Three-- the actual question presented in the case-- but I agree with PG there is little to say about it because Justice Thomas says all that needs to be said.]
First of all, Scalia probably would have done well to keep quiet on this score. If he is right that the moral status of the death penalty is irrelevant here, then why go into it, provoking the litany of blog posts, newspaper articles, academic emails and law review articles that this section of his concurrence was sure to? It seems like one argument too many, like the accused murderer who says "I wasn't there, I didn't do it, and he hit me first!"
That said. I'm not sure that PG's names below are on-point. Yes, plenty of people have been put on death row and discovered to be innocent before it was too late. The question is whether our modern safeguards (and executive clemency is a safeguard) have allowed an innocent person to be put to death. Scalia's point is that we have no good evidence that the answer is "yes".
I don't know whether PG is right that no organized group is "digging up corpses" to prove that we have executed an innocent person. If not, I can't understand why not. Surely one of the best ways for the death-penalty-as-procedurally-flawed folks to finally "change public policy on death penalty" would be to at last be able to put a face to the claim that innocent people are being killed by the government.
Now, PG, it's fair enough to point out that by narrowing the field to post-Furman executions, Justice Scalia is taking credit for death penalty reforms that he probably would oppose. But those cases are water over the dam so far as Marsh Two is concerned; given the constitutional requirements we have imposed on death penalty regimes, do those regimes kill innocent people, and if so, at approximately what rate?
Anyway, I think I will take Scalia's argument a step further and in another direction. I think it is Justice Souter that is being morally obtuse here. First of all, there is good reason to think that capital cases erroneously convict less often than non-capital felonies do. There are a number of public-interest resources, extra constitutional protections, and other hard looks that help out the capital defendant. In exchange, the capital jury is death-qualified, but errors in the death-qualification procedure can give the defendant another bite at the apple, so it's not even clear which way that cuts. See the discussion of this at Doug Berman's blog.
What's worse, all of this teeth-gnashing about the death penalty means less attention to the real problem of erroneous convictions at any stage. If Justice Souter is right that our death penalty system has an error rate sufficiently high as to be morally suspect, then why not make the same claim about our prison system? Our probation system? They're different in degree, not kind.
Frankly, I don't see the constitutional difference between locking somebody in a concrete cell for 5-10 years and then executing them, and locking them in a cell for 30-50 years until they die of so-called natural causes. Milbarge, PG, do you?
I agree with PG that the dissenters in Marsh could have picked a better vehicle for their digression about error in capital cases. A concurrence in House, perhaps? But I don't agree with her that "they would have been better off to dissent straightforwardly on this and every other case upholding execution by quoting Blackmun -- 'I no longer shall tinker with the machinery of death' -- and stopping with that."
First, maybe they aren't absolutists like Blackmun became. It's amazing how far things have shifted in just the last fifteen years or so. Despite conservatives' howling about how far left Souter and Ginsburg and Breyer are, they sure aren't automatically voting against every death sentence like Marshall and Brennan did. While the Marsh dissenters are certainly quite critical of the death penalty, I haven't seen any indication they want to throw away their tinker's tools, no matter how "straightforward" that might seem.
It seems like Scalia's always darkly suggesting that those four really want to chip away at the death penalty bit by bit. And, in practice, that may be what happens with cases like Atkins and Roper. But if you're Justice who believes that, in theory, the death penalty can constitutionally be applied in some circumstances, but want to be strict in oversight to ensure that it's only applied to the worst of the worst, wouldn't your work look a lot like Souter's or Stevens's or Ginsburg's or Breyer's? What is so nefarious about that? Souter's Marsh dissent talks a lot about the moral authority for the death penalty -- the idea that it's only morally justified if it's reliable and has lots of safeguards, etc. How could anyone with a conscience write or sign on to that if he or she really believed that the death penalty lacks any moral authority at all?
Souter's dissent is all about who should have the burden when death is on the line. Whether it's at a macro level (our standing with the rest of the civilized world) or the micro level (arguing to a particular jury), it's up to those who seek death to justify it. There's nothing in that dissent that's incompatible with the idea that it can be justified, and indeed, those four have voted to uphold scores of death sentences. I just don't think they're ready to put up their toolboxes yet.
Even assuming they really do, in their heart of hearts, believe the capital system is unfixable, who says they have to say so, like Brennan and Marshall, in every death case they see? Wasn't Chief Justice Roberts heralding the virtue of minimalism not too long ago? Isn't Scalia famous for saying the Court should decide as little as possible and call it a day? True, the reliability of Marsh's conviction was beyond the scope of the discrete Kansas law at issue on appeal. But viewed in light of my justification burden analysis above, it's not too far out there.
Scalia, however, so desperately wants that "Aha, I knew it!" moment, but why should the dissenters give it to him? After all, how many federal sentences did Scalia vote to uphold without mentioning his belief from Mistretta dissent that the Guidelines were unconstitutional? Didn't cases like Jones, Apprendi, and Blakely chip away bit by bit at the Guidelines? Nowhere in those cases does Scalia huff, "I no longer shall tinker with the machinery of the Guidelines."
Maybe someday the Court will take up the second go-round of Furman, the way Grutter was a follow-up to Bakke, and the Court will have to plainly and squarely face the primary Eighth Amendment question. But until then, why can't the Marsh dissenters be death penalty minimalists?
The idea that SCOTUS should leave state courts' misinterpretions of federal law unreviewed as long as the errors are in criminal defendants' favor reminds me of a discussion I had with Will in which I tried to argue for a pro-liberty stare decisis, and so I feel quixotically compelled to attempt a defense of " Stevens's Nullification Doctrine."
This is difficult, not least because the Marsh majority correctly applied the Sixth and Eight Amendment precedents to uphold Kansas's scheme: in line with the Apprendi-Blakely reasoning, the jury rather than the judge makes determinations relevant to sentencing; in line with Furman and the more positive motivation for sentencing guidelines, once those determinations about mitigating and aggravating factors are made, the penalty is applied to everyone for whom the factors are equal or tipped toward aggravation, thereby avoiding bias at least at that stage. And as Thomas says*, that is the stage under review, not the preceding process of crime identification, arrest, indictment, juror selection, etc. I really can't find a rationale on which to defend the dissenters' stated arguments, and think they would have been better off to dissent straightforwardly on this and every other case upholding execution by quoting Blackmun -- "I no longer shall tinker with the machinery of death" -- and stopping with that.
However, I do have some names to provide Scalia, as well as a point that the dissenters did not make.
Will wonders if the Roberts era will be characterized by more pure error correction decisions from the Court. It's dangerous to call a handful of cases a trend, but there are signs pointing in that direction. Prof. Berman offers some thoughts for why Recuenco may be more than that, but I don't see any great urgency for taking Marsh, Brigham City, or (especially) Youngblood, except that a majority of the Justices seemed to want to correct an error.
On the other hand, error correction is a lot of what the Court normally does anyway. As Goldstein noted, the Court reverses about 75% of the time anyway. Not all of those cases involve circuit splits or tremendously important issues. I think it would be more noteworthy if the Court started taking more cases just to affirm as nationwide policy a lower-court decision it thinks is right. (What would we call the opposite of "error correction"? "Correctness affirmance"?)
Much has been made of the shrinking Supreme Court docket (including by me here), but I don't think the Court should simply find some make-work just to appear busy at budget time. Obviously, it's hard to harness nine different cert philosophies into a coherent system, so we're probably always going to see some idiosyncratic grants. But I would rather the docket stay small if there's no compelling need for the Court to hear more cases. And I'm not convinced that pure error correction is enough to justify that. I'm okay with an "error-plus" calculus, which in practice seems to be what the Court uses about 75% of the time. I'm even kind of okay with "it's a Ninth Circuit case" being a valid "plus-factor" because an error in that circuit affects about a fifth of the nation's population. But with all the issues it could be deciding, the arguments for hearing cases like Marsh and Brigham City seem lacking. If this is indeed a trend, I'm not enthusiastic.
Changing the subject, Tom Goldstein considers the effects of the O'Connor/Alito switch on the re-argued cases. And Prof. Filler at the Co-Op yesterdaysuggested that we wouldn't have seen the fireworks in Marsh with O'Connor on the bench because she wouldn't have signed on to Souter's innocence argument, which provoked Scalia's ire. Reading Kennedy's opinion last week in Rapanos, I realized he's now the only Justice with any real tie to the west, and that O'Connor might have waxed even more rhapsodic about dry river beds and flash floods in the desert. (Kennedy cited the Los Angeles River.) Will and PG, do you have any thoughts about O'Connor's impact on this term, either before or after she left the Court?
Any thoughts on Gonzalez-Lopez, the right to counsel of choice case from Monday? Another nail in the "Scalito" coffin, after Zedner, the Speedy Trial Act case in which Scalia criticized Alito's use of legislative history? (Note that I argued here that any talk of a "rift" between the two after Zedner was hogwash.) Prof. Althouse offers some thoughts here. I never expected Alito to be nothing more than a Scalia clone, of course. I'm not sure I'm convinced by Scalia's opinion here, though.
Milbarge, you make a good point that the cert-grant in Marsh (and to a lesser extent Brigham City and Recuenco) look more like error-correction than the resolution of a deep conflict among the lower courts. So I wonder if you think we might be entering a new era with the Roberts Court-- the era of error correction.
As you pointed out, Roberts has suggested that the Court might take more cases. Roberts himself has said that the Supreme Court ought to "dispose" of those cases that it does take on the narrowest ground possible. In Youngblood, the Court essentially held that a lower court should re-decide a case even though no intervening fact had changed. It looks to me like Roberts is trying to move the Court toward a model of error-correction.
If so, would that be a bad thing?
Watch out, folks. I'm about to make a textualist argument.
I have a conservative law school friend who, whenever we argue over abortion or other privacy rights, fumes, "Show me where in the Constitution you find the word 'privacy'!" I like to reply, "Show me where you find the words 'sovereign immunity'!" But if you look, Article I does state that Congress should establish uniform bankruptcy laws. So, it's more than just a "policy," as Will asserts; it's a constitutional directive to Congress that is clearly at the expense of the states. Why is it so hard to fathom that a policy gleaned from the Eleventh Amendment in Hans could be trumped by an explictly enumerated power? (Okay, to be fair, the concept of state sovereign immunity is older than Hans, and I'm not disputing its existence; mainly I'm just gigging Will. I just think he's giving short shrift to Congress's bankruptcy responsibility by calling it a mere "policy" when it at least shows up in the Constitution.)
A few more thoughts below the fold.
Also, I can't resist defending myself from PG below. Of course there's a federal policy in favor of uniform treatment of bankruptcy. The question is whether a policy in favor of uniformity can trump an enumerated or unenumerated constitutional right, in this case the nasty but well-entrenched right of a state not to be sued for damages without its consent. (A right that is best understood a right not to have judgments entered against it without personal jurisdiction, as Caleb Nelson has shown in the Harvard Law Review.)
The answer is no. To my knowledge nobody suggests that bankruptcy's policy in favor of uniformity enables it to decide cases without due process, although surely individualized process is sometimes at war with uniformity too.
Fascinating stuff issued from the Supreme Court today. Milbarge, PG, I'm sure you and I will disagree about Randall v. Sorrell (the Vermont campaign finance case) in due time. (While I think Eugene Volokh's defense of Buckley is the most compelling one I have read, I think the entire Vermont regime was probably unconstitutional, and that Thomas, Scalia, Kennedy, and Stevens are right that at this point the Buckley framework has led to more errors than it is worth.)
In the meantime, I think that the opinions to read are Justice Scalia's concurrence in Marsh as against Stevens's dissent in Marsh and in Recuenco. This debate, which I have previously discussed back at Crescat, is whether the Supreme Court ought to be taking cases from state supreme courts when those courts make an arguably-erroneous interpretation of the federal constitution, but any error would benefit the criminal defendant. Justice Stevens's position is that there is no point in taking those cases, because no harm is done if a state court decides to use federal law to let somebody go free. Scalia's response is that rights talk can cut both ways. If state supreme courts are taking the federal Constitution's name in vain, then that is a legal error too. I almost hoped Scalia would mention "active liberty".
It seems to me that Justice Stevens is way off base here. Stevens is right that until the early 20th century, the Judiciary Act didn't give the Supreme Court jurisdiction to hear appeals in cases like this-- where the state court used the federal constitution to strike down a state law or practice. But what that meant was that when a contested question arose, the Supreme Court wasn't able to hear the case and resolve the issue until some state, somewhere, had upheld the law. If the state courts were united, then the Supreme Court couldn't stop them even if they were totally wrong. This also meant that a case frequently couldn't reach the Court until a great deal of momentum had built up on the other side of the question. Now if one thinks that striking down laws is generally a good thing, and the Court should err on the side of increasing activism, this posture may make some sense. But to most scholars at the time, this seemed crazy, which is what prompted Walter Dodd and others to lobby for the reform of the Judiciary Act. Which, thank heavens, we now have.
So now Justice Stevens wants to bring back as a doctrine of comity what Congress has eliminated as a doctrine of jurisdiction. I think the idea is almost as bad. [It is true that state courts have license to protect individual rights against state intrustion via broad interpretation of the state constitution, and as a general rule I think there is nothing at all wrong with that. State constitutions have different histories, texts, and animating purposes than the federal one, and as I mentioned once at the Conglomerate, the institutional posture of state supreme courts may rightly give them reason to be less deferential to the legislative and executive branches than the federal courts are.]
But indifference between what source of law (federal constitution or state) is used to produce the same result is legal realism at its worst. It is bad first of all because it makes it too easy for judges to play shell-games with those who make law. The people of Kansas retain control over the Kansas Constitution, and can amend it to correct judicial mistake. The Eighth Amendment to the Federal Constitution is, for all practical purposes, out of play. It is bad second of all because it misunderstands the nature of the judicial process-- to resolve disputes by applying legal rules derived from texts or the common law, not to look around for a rule to justify one's preferred result.
But I'm rambling. PG, Milbarge, what do you think of the Stevens Nullification Doctrine? Or am I making tempests out of teapots?
Among monkeys, anyway.
With regard to Milbarge's question about the state of sovereignty, I put limited stock in Rehnquist's Hibbs opinion -- too many cynics have convinced me that it was damage control on how the liberal + O'Connor majority could have extended the holding had he not joined them and assigned the opinion to himself. Indeed, it's the half-presence of O'Connor in this term that I find more significant; inasmuch as she wasn't entirely reviled by conservatives, it was generally for her commerce clause jurisprudence.
Though Milbarge deems Marshall v. Marshall overrated and Will nominates Central Virginia Community College v. Katz for underrated, both cases involve a conflict between the federal authority over bankruptcy and a state's power (in Marshall over probate, in Katz to refuse being sued). Will says the latter "held-- quite implausibly given the caselaw-- that Congress can use an Article 1 enumerated power to abrogate state sovereign immunity." Viewed more in terms of the weight of that enumerated power, "[t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States," however, the caselaw seems more favorable.
The Court issued five new decisions this morning; Howard has lotsa links here.
I'm still trying to wade through the Vermont campaign finance case to see if I can claim even partial credit for my prediction. I said that the Court would issue a muddled opinion requiring complicated vote-counting, and that's what happened. And the Court didn't go so far as to say that the states can't enact any limits on contributions (just that the ones Vermont did were too low). Of note, we now have at least four votes to overrule Buckley v. Valeo. I need to re-read this one, though.
Other interesting developments this morning include Justice Stevens spending a lot of time in a couple of cases (Recuenco and Marsh) discussing his theory of state court protection of federal rights for criminal defendants, and whether the Court should take a different approach when it's the state appealing instead of the defendant. Will has discussed this notion recently, so I expect him to add some more this week. The must-read opinion today, though, is Justice Scalia's staggering concurring opinion in Marsh. More on that later, as well.
Finally for now, our Slate forbears have started their discussion here, with Dahlia Lithwick asking Walter Dellinger what's so great about unanimity. After last week and this, we might better ask, What unanimity?
A few brief thoughts in response to Milbarge's post below.
Gonzales v. O Centro Espirita is one of my candidates for a most-underrated case. It undoes half of the damage some people thought was done by City of Boerne v. Flores, when the Court struck down the Religious Freedom Restoration Act on enumerated-powers grounds. O Centro says that RFRA is alive and well, laws that substantially burden religious exercise must meet strict scrutiny, and the say-so of the litigating branch of the DOJ is not enough to count as a compelling state interest. (Neither is the say-so of a few folks in the state department about our treat obligations.)
O Centro is also big for what it might signal about the Supreme Court's attitude towards vice policy. To establish a compelling state interest sufficient to justify criminalizing a religious sacrament, the state has to show that the drug in question is harmful in the circumstances in question. It's not enough that Congress declared it to be harmful across the board. Of course, since a huge number of these drugs really aren't very harmful, that's going to make it very difficult for government litigators to prove that they are harmful in the particular cases at hand. Basically O Centro forces the government to prove on an individualized basis what isn't even true on a generalized basis, which may end up poking some holes in the current broad-blanket attitude towards the criminalization of the consensual ingestion of substances.
Of course, I'm enough of a realist not to imagine this attitude will hold for long; the deference shown toward Congressional factfinding last term in Raich is just one recent example. And I'm also not sure that this attitude is the proper legal posture for the Supreme Court to take. But it seems to me that simultaneously showing that the Religious Freedom Restoration Act has teeth, and that the government is not going to get a blank check where drugs are concerned, are two very big deals.
Central Virginia Community College v. Katz is my other candidate for an under-rated case, since it held-- quite implausibly given the caselaw-- that Congress can use an Article 1 enumerated power to abrogate state sovereign immunity. Even the lawyer who argued the case was positive that he was going to lose. Justice O'Connor's switch-in-time is a much bigger deal than the Court's decision in Georgia; it would be a bigger deal if she were still on the Court. Even Linda Greenhouse forgot about the case when she was reporting on sovereign immunity.
So many cases are over-rated that it's hard to know where to begin.
Thanks to PG and Will for joining me on this little adventure. And thanks to PG for hosting the whole shebang over here.
I thought about titling this post, "Light This Candle." That was what Alan Shepard said when he was ready to blast into space. He also said, ""Please, dear God, don't let me f*** up," which also seemed appropriate given that I always manage to mangle these MT blogs (I'm a Blogger guy). And then I realized, even though this is something of a kick-off post, we're really discussing the end of a very eventful Supreme Court term and trying to wrap it up with some kind of synthesis. I tried for some kind of "burning the candle at both ends" metaphor, and finally just gave up. So that explains the boring post title, which is certainly less evocative than PG's.
Anyway, we're now less than twelve hours away from the moment when the buzz in the majestic court room will die down, and the gavel will bang, and the marshal will call the court to order, and the Justices will file in and take their seats. The Chief Justice will inform the listeners that a certain Justice will announce the decision in a pending case, and that Justice will finally end the suspense. On rare occasions, a dissenting Justice will add a few words. And they'll continue that way until they get through the day's business. The Chief Justice will announce a recess, the gavel will bang, and the Justices will file out. It's pretty amazing to think how much the law can change, how many lives will be impacted, how the balance of power between the branches of the federal government, and between the states and the national government, will shift, all in the span of a few minutes.
And then, of course, people like us will spend many more minutes trying to digest what just happened.
The square root of nine justices is three lawyers/ law students. Perhaps that's the calculation behind Milbarge's idea that he, Will Baude and I do a Slate-style discussion of the soon-to-end Supreme Court term. We may achieve similar levels of agreement -- below the fold, I list the cases in which the justices were not wholly unanimous (many of which were unanimous in result, with just a concurrence filed or a subpart unjoined) -- or perhaps we will hark back to the good ol' disputatious days of the Rehnquist era. All the posts will be at blogdenovo.org/scotus2006.html, and I hope that BTQ, Crescat and De Novo readers add their own opinions to the mix.
The descriptions of the holdings come from the Court's sliplists.