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Tuesday, December 12, 2006

Supreme Court Update by Aaron Streett

Two unsurprising opinions handed down by the Court yesterday—a unanimous reversal in a 9th Circuit habeas case and a unanimous affirmance of a D.C. Circuit opinion by a former Circuit Judge who was unable to hold the job for more than a couple years—John G. Roberts, Jr. In other news, the Court has now thrice re-listed a religious symbols case that could become the first major religion case of the Roberts Court. Off to the cases!

Carey v. Musladin, 05-785

Justice Thomas wrote the Court’s opinion for six Justices (JGR, AS, RBG, SGB, SAA), administering the second smackdown to Judge Reinhardt and his merry band of AEDPA-flouters in less than a month.

On federal habeas, the 9th Circuit had vacated Musladin’s murder conviction because the victim’s family members were allowed to wear buttons to the trial that featured a photograph of the victim. It took the Court all of 7 pages to explain why that holding was wrong—and 3 of those recounted the facts. The bottom line: AEDPA says a federal court can’t spring a crook unless the state court unreasonably applied clearly established federal law, as decided by the Supreme Court. Hard as it is to believe, in this single, solitary habeas case, alone among all the habeas cases in the western third of the United States, the 9th Circuit granted relief based on something less. Justice Thomas explained that the question of when spectators’ conduct deprives the defendant of a fair trial “is an open question” in the Supreme Court’s jurisprudence. While the Court has created a test to determine when state-imposed trial conditions unfairly prejudice the defendant—such as by forcing him to wear prison clothes—it has “never applied that test to spectators’ conduct.” Consequently, the state court did not violate any clearly established Supreme Court caselaw when it affirmed Musladin’s conviction.

Three Justices filed solo opinions concurring in the judgment. Justice Kennedy read the caselaw as clearly establishing a defendant’s right to a trial free of coercion and intimidation, regardless of whether it comes from the state or from spectators. But AMK saw no evidence of coercion or intimidation here. In his (advisory) opinion, however, lower courts should consider banning buttons as a preventative measure. Similarly, Justice Souter would have held that any courtroom condition that causes “an unacceptable risk . . . of impermissible factors coming into play” violates the Constitution. But button-wearing spectators do not clearly pose an unacceptable risk because (1) most courts have upheld convictions despite the presence of button wearers, and (2) victims may have a First Amendment right to wear “mourners’ buttons” that would justify some level of risk to the defendant’s rights. Justice Stevens agreed with DHS’s reasoning, except for his shall-we-say-unique First Amendment musings. JPS also found fault with the majority’s statement that AEDPA’s “clearly established law” includes only holdings, not dicta, of the Court.

BP America Production Co. v. Burton, 05-669

Despite the diligent efforts of Baker Botts counsel, the Court declined to reverse a D.C. Circuit opinion by then-Judge John Roberts in this mind-numbingly boring statute-of-limitations case. Justice Alito drew the short straw and wrote the unanimous opinion for the 7-member Court (SGB was also mysteriously recused, as he often seems to be in boring cases). The question was whether the 6-year statute of limitations for government breach-of-contract actions applies to administrative proceedings to recover royalties under the Federal Oil and Gas Royalty Management Act (“FOGRMA”), or “Foggy Grandma” as it is known among hilarious Interior Department bureaucrats. The statute of limitations covers “actions for money damages” that are initiated by filing a “complaint.” Justice Alito explained that those terms most naturally refer to lawsuits in court, not to administrative proceedings. And in a move sure to warm the heart of the Court’s other Italian from New Jersey, he cited Black’s Law Dictionary, 1951 edition, for this proposition. Further bolstering his Scalito credentials, Justice Alito said that any doubts about the scope of the statute are resolved by “quod nullum tempus occurrit regi”—the half-millenium-old common-law rule that means “time does not run against the King.” In other words, an ambiguous statute of limitations is construed strictly in favor of the sovereign, here, apparently King George II. The Court complimented petitioners’ “cogent policy argument” that the government’s interpretation allows it to circumvent the limitations period simply by bringing administrative proceedings instead of lawsuits, but essentially told petititioners to take it up with the King. As Justice Alito thoughtfully put it, “while we appreciate petitioners’ arguments,” we don’t appreciate them enough to rule for you.

Re-list Watch: The Court has now re-listed Skoros v. New York City (06-271) three times. Skoros involves a New York public school’s refusal to permit the placing of a creche alongside a Jewish menorah and an Islamic star and crescent in a school holiday display. Be on the lookout for either a grant or dissent from denial in this case when the Court reconvenes on January 8. Either way, the Court’s action will probably give us some insight into its approach to religion cases now that Justice O’Connor and her controlling fifth vote on these issues have passed from the scene. In the meantime, Merry Christmas and Happy New Year!

Until next time (and probably next year), that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to aaron.m.streett at bakerbotts.com

Posted by Administrators on December 12, 2006 at 07:03 PM in Constitutional thoughts | Permalink


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