Aaron Streett on Supreme Court Yesterday

Greetings, sportsfans! Before [yesterday], what the Court’s docket lacked in quantity, it made up for in sheer stupefying dullness. No more! The Court’s first semi-blockbuster of the Term has Golden State crooks jumping for joy in the jails. And the Court agrees to hear a potentially blockbuster campaign-finance case by the end of this Term. All that, two more opinions, and 7 more grants, as the Term keeps heating up. Let’s recap the action.

Cunningham v. California, 05-6551

The mysterious dearth of Ginsburg opinions was explained [yesterday] as RBG released her first majority, in which the population of Apprendi-land was expanded by one (and perhaps two). RBG (joined by JGR, JPS, AS, DHS, CT) wrote the straightforward majority opinion striking down California’s sentencing law. California’s system requires a judge to sentence the defendant to the middle of three sentencing terms (e.g., 6, 12, or 16 years), unless the judge finds—by the preponderance of the evidence—an aggravating fact that would support the longer term. That pretty clearly violates Apprendi­-Booker’s 6th Amendment requirement that the jury find, beyond a reasonable doubt, any fact that increases the sentence beyond that authorized solely by the verdict. The California Supreme Court tried to salvage its system, however, by analogizing it to federal sentencing under the post-Booker “advisory” Guidelines. In other words, California argued that its system simply gives the judge broad discretion to sentence within a range (e.g., 6-16 years), subject to appellate review for reasonableness. RBG was not buying. She concluded that California’s system does not involve statutory sentencing ranges at all, but instead instructs a judge to impose the middle-term sentence unless he finds additional facts. The discretion that a judge may have in deciding whether to impose the longer term is irrelevant; the problem is that the judge has the authority to increase the sentence beyond that authorized solely by the jury’s verdict. Nor, RBG explained, does appellate reasonableness review somehow alleviate the 6th Amendment violation that occurs when a judge increases a criminal sentence based on facts not found by the jury. (Here, RBG harshly criticized Justice Alito’s dissent for unnecessarily “previewing” federal reasonableness review when the Court will decide that issue later this Term in Claiborne and Rita.)

Justice Alito (joined by AMK and SGB) penned the lead dissent, masterfully demonstrating that the majority’s opinion is on a collision course with the Booker remedial opinion. If this is giving you a feeling of queasy familiarity after Justice O’Connor’s prescient Blakely dissent, you are not alone. Justice Alito would have held that California’s system is “indistinguishable in any constitutionally significant respect” from the post-Booker federal system. Both systems start with a presumptive sentence based on the jury’s verdict, and that sentence may be altered (within the statutory range) as a result of judicial factfinding, subject to appellate reasonableness review. Moreover, a California judge’s sentencing decision—like the post-Booker federal judge’s decision—does not rest entirely on “facts,” but also on traditional sentencing considerations such as deterrence, restitution, and proportionality. Justice Alito makes a strong point that if the post-Booker Guidelines dictate a presumptive sentence, then the federal system is really little different from the California one. The fact that the six-Justice majority was not willing to accept Justice Alito’s comparison may mean that in Claiborne and Rita, the same Justices are prepared to clarify that the Guidelines are more-or-less truly advisory and that reasonableness review should be correspondingly lenient.

After the rash of articles crowning him as the Court’s new swing Justice, you might be surprised that Justice Kennedy still has to write dissents. But along with SGB, AMK filed a separate dissent to assert their longstanding view that Apprendi is wrong, wrong, wrong. Notably, there are only two stated votes for that position now, as opposed to four before WHR’s and SOC’s departure.

Cunningham contains interesting insights into the two newest Justices. First, the New Chief apparently disagrees with the view of his mentor (the Old Chief) that Apprendi is made up out of whole cloth (which Justices criticize when others do it). Or at least Roberts is willing to accept it on stare decisis grounds. Roberts’ vote in Cunningham, even apart from accepting Apprendi, is quite frankly surprising, given his consistently pro-government votes in other criminal cases. I wonder if it is not indicative of a willingness to join 5 colleagues to avoid a 5-4 result (which he professes to dislike), even when he has misgivings about the merits. Justice Alito, while ruling for California, does not join AMK’s call for Apprendi’s overruling. This continues both Justices’ practice from last Term of declining to decide whether to overrule a case when the question is not squarely presented. See Randall v. Sorrell (2006).

Jones v. Bock, 05-7058

Chief Justice Roberts used this case to wield conservative, judicial-minimalist principles to reach a pro-defendant result. He took up the task of writing the 24-page unanimous opinion, delving into the intricacies of the administrative-exhaustion requirements of the Prison Litigation Reform Act. In short, the PLRA’s requirements are not, as the 6th Circuit seemed to think, designed to exhaust the prisoners by making them comply with extra-statutory burdens. More specifically: (1) Exhaustion need not be pled and demonstrated in the complaint; rather, failure to exhaust is an affirmative defense. (2) The PLRA does not require the prisoner to name each defendant in the administrative proceedings to properly exhaust, but prisoners must follow any internal prison procedures. (3) Faced with a suit containing both exhausted and unexhausted claims, the district court need not dismiss the entire action, but should dismiss only the unexhausted claims. JGR sympathized with district judges “attempting to separate, when it comes to prisoner suits, not so much wheat from chaff as needles from haystack,” but the Court declined to create new policy-based requirements not included in the PLRA or the rules of civil procedure.

Osborn v. Haley, 05-593

There’s no one that can untangle an intricate procedural skein like Justice Ginsburg, and this case is no exception. Her opinion was joined by JGR, JPS, AMK, and SAA. The Westfall Act, 28 U.S.C. § 2679, requires the United States to be substituted as defendant in place of a government employee facing a common-law tort suit, if the Attorney General certifies that the employee was acting within the scope of his employment. The certification automatically results in a state-court case being removed to federal court, and the certification remains “conclusive . . . for purposes of removal.” § 2679(d)(2). The district court, however, reviews the certification on its merits to determine whether the employee was in fact acting within the scope of his employment. In this case, the district court rejected the certification because the government denied that the alleged tortious incident occurred (and thus how could it have been within the scope of employment) and remanded the case to state court. On appeal, the 6th Circuit reinstated the certification and vacated the remand order. This left Justice Ginsburg to address several issues of circuit-splitting significance to tortfeasor-bureaucrats. First, RBG held that the Westfall Act’s rule that certification is conclusive for removal purposes barred the district court from remanding the case to state court. Relatedly, the 6th Circuit had appellate jurisdiction over the district court’s mistaken remand order—notwithstanding the general non-reviewability of such orders, 28 U.S.C. § 1447(d)—to effectuate the conclusive jurisdictional nature of the certification. Finally, the Court concluded that a Westfall Act certification is proper when the government denies that the tortious conduct occurred at all. Rejecting a 1st Circuit opinion by then-Judge Breyer, RBG reasoned that the policy of the Westfall Act protects those who claim to be totally innocent of tortious behavior, not just those who committed tortious behavior in the scope of their employment. Faced with an “incident-denying certification,” the district court must resolve the factual dispute itself and determine whether the tortious conduct in fact occurred.

Justice Souter concurred with one exception. He would not allow appellate review of Westfall Act remand orders, but would allow review of the denial of certification, which he thinks would largely solve the problem of district judges who wrongly remand these types of cases.

Justice Breyer concurred in the jurisdictional analysis, but dissented from the Court’s decision to allow incident-denying certifications. SGB reasoned that the government ought to be required to certify, conditionally, that if the incident did occur it fell within the scope of employment. Otherwise, he worried that the government would file incident-denying certifications where the alleged conduct is totally unrelated to government employment. Here, he started ruminating about a Yellowstone Park ranger “on a frolic” on Coney Island, and that’s where I stopped reading.

Justice Scalia, joined by Justice Thomas, dissented. Nino would hold that § 1447(d) squarely bars review of all remand orders and he laments the Court’s chipping away at his beloved bright-line rule. And contrary to Justice Souter, he would have held that the 6th Circuit also lacked jurisdiction to review the certification issue because it is inextricably intertwined with the remand issue.

Grants, etc.

The Court granted cert in 6 cases and ordered argument and briefing in 2 direct appeals. Here’s a quick rundown.

FEC v. Wisconsin Right to Life, Inc., 06-969/McCain v. Wisconsin Right to Life, Inc., 06-970

The Court ordered expedited briefing so that it could decide this blockbuster follow-up to its 300-page opus in McConnell v. FEC (2003) by the end of the Term. The question is whether the Bipartisan Campaign Reform Act (aka the McCain-Feingold Act)—which bans nonprofits from using their corporate treasuries to run television ads naming candidates in the days leading up to elections—is unconstitutional as applied to “genuine issue ads” that are not designed to influence elections. Also in dispute is how a court tells the difference between an issue ad and an election ad. A divided three-judge D.C. district court held the Act unconstitutional as applied to issue ads, and the FEC and Senator John Please-Don’t-Let-These-People-Run-Ads-Against-Me-In-’08 McCain appealed. The 5-4 McConnell majority (SOC + the 4 liberals) that rejected a facial challenge to BCRA may no longer exist, depending on JGR’s and SAA’s unknown (but likely hostile) views on BCRA. So this case may present another key test of the new Justices’ views on stare decisis. A decision affirming the district court’s reasoning would open a gaping hole in BCRA’s ban on corporate election speech.

Office of Senator Mark Dayton v. Hanson, 06-618

This is a fascinating direct appeal concerning the Constitution’s Speech and Debate Clause, which shields congressmen from liability for their official duties. The question is whether the Clause bars jurisdiction over an employment-discrimination suit by a staffer against Senator Dayton, when the staffer’s job duties are part of the functioning of the legislative process. The en banc D.C. Circuit overruled an earlier circuit precedent and permitted the suit to proceed, but splintered on the rationale. Besides the merits, the Supreme Court asked for briefing on its appellate jurisdiction and on whether the case is moot due to Dayton’s retirement.

United States v. Atlantic Research Corp., 06-652

This is an important follow-up to the Court’s 2004 hazardous-waste stemwinder in Cooper Industries v. Aviall Services (2004). The QP: Can persons potentially liable for cleanup costs, who have neither been sued under CERCLA nor resolved their liability to government, but who have incurred cleanup costs, recover those costs from other potentially liable parties under Section 107(a)(4)(B) of CERCLA, thereby avoiding Cooper’s ban on contribution actions under Section 113?

Brendlin v. California, 06-8120

More proof that the Justices read the Volokh Conspiracy. The Court acceded to conspirator Orin Kerr’s request that it examine this 4th Amendment case, asking whether passengers in a car are “seized” during a traffic stop. The California Supreme Court said no. Since the relevant test is whether one would feel free to leave under the circumstances, I think we could all answer this question. I’m with Herr Kerr in predicting a reversal.

Powerex Corp. v. Reliant Energy Servs., 05-85

As noted last week, this case was relisted several times before the Court finally granted it. The question is when a foreign company doing business in the U.S. gets sovereign immunity as an arm of a foreign state. The Court also asked for briefing on whether the CA9 had jurisdiction over the district court’s remand order, notwithstanding § 1447(d). I can already see Justice Scalia firing up his “I told you so” dissent.

Beck v. Pace International Union, 05-1448

This is a potentially important ERISA case to the many plan sponsors trying to vaporize financially burdensome employee benefit plans (think American automakers). The QP is whether a pension plan sponsor’s decision to terminate the plan by purchasing an annuity, rather than to merge the pension plan with another, a decision subject to ERISA’s fiduciary obligations. The CA9 said yes. I know you’re shocked (shocked!) to learn that we will almost certainly see a reversal here.

Permanent Mission of India to United Nations v. New York City, 06-134

The Court followed the SG’s recommendation to grant on this one. The question has to do with the scope of the exception to foreign sovereign immunity when immovable property situated in the United States is in issue. See 28 U.S.C. § 1605(a)(4). Namely, can New York go after foreign countries who are delinquent in paying their property taxes on posh Manhattan apartments for their selfless global public servants (aka UN bureaucrats).

Until next time, that’s yesterday’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 [email protected]