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Saturday, March 03, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! The 9th Circuit ran its record on the Term to 0-7 in the week’s lone opinion, and there’s some notable cert and CVSG action to report as well. Still no opinions in the partial-birth-abortion cases, but I’ve got the next best thing: semi-informed speculation on their probable author and outcome. In other news, SCt Today devotees (Both of you! Hi mom!) can expect a return to the timely reportage you deserve as your fearless sportscaster goes on the diaper “disabled list” next week. Activate your spam blocker now.

Whorton v. Bockting, 05-595

The question here was whether Crawford v. Washington (2004)—which held that criminal defendants have a constitutional right to cross-examine testimonial witnesses—applies retroactively to convictions already final on direct review. In other words, whether every single prisoner in the country can bring Crawford challenges to their convictions, no matter how ancient. Of the 13 appellate courts to consider the issue, only the 9th Circuit accepted this Brennanesque proposition. But, alas, there are no Brennans on this Court. Herewith a good general rule for the Roberts Court: When the CA9 finds itself on the short end of a 12-1 split, it is probably not because that court had unique insight into the legal issue at hand (or at least not uniquely good insight).

Justice Alito wrote the unanimous Court’s terse 13-page opinion. He explained that under Teague v. Lane (1989), a decision applies retroactively (1) if it merely applies an “old rule” or (2) if it announces a “new rule” that is “a watershed rule of criminal procedure.” Alito easily concluded that Crawford’s rule was a “new” one. After all, Crawford overruled Ohio v. Roberts (1980), which had allowed testimonial statements to come in as hearsay—i.e., with no possibility of cross-examination—so long as they bore “indicia of reliability.” However, the Court concluded, Crawford did not announce a “watershed” rule. A watershed rule is one that (1) prevents an “impermissibly large risk of an inaccurate conviction” and that (2) “alters our understanding of the bedrock procedural elements essential to the fairness of a proceeding.” Only one case has ever been found to be watershed: Gideon v. Wainwright, which created a 6th Amendment right to appointed counsel for felony defendants. As for the first prong, Justice Alito explained that Crawford’s rule did not necessarily increase the accuracy of convictions. Indeed, the old Roberts rule required “reliability” before hearsay testimony could be admitted, and Crawford actually reduced Roberts’ protection in one respect by allowing unreliable nontestimonial statements to come in as hearsay. As for the second prong, the Court basically said, “Yeah, Crawford was an important procedural decision, but not as huge as the difference between having a lawyer and not having one (see Gideon).” No, really, that’s about all the analysis there was on that prong. So prisoners seeking retroactive effect for a Supreme Court ruling are advised to retain Anthony Lewis to write a book with a clever title about the case, and Crawford’s Trombone clearly didn’t cut the mustard here. Finally: What’s up with Justice Alito taking three months to get out his second opinion of the Term when it was unanimous? Makes you wonder what else he may have been doing with his time.


Washington State Grange v. Washington Republican Party, 06-713/ Washington v. Washington Republican Party, 06-730 (consolidated)

Washington State took to heart Barry Goldwater’s admonition that “there’s not a dime’s worth of difference” between Republicans and Democrats. Instead of traditional party primaries, Washington holds a single primary in which all contestants run, identifying with a party if they so choose. The top two finishers, regardless of party, proceed to the general election. Vive la France! The CA9 struck down this Frenchified (or is that Freedom-fried?) arrangement as an infringement on the political parties’ First Amendment rights because parties are forced to associate in the general election with candidates they don’t much like. This will be a follow-up to the Court’s decision in California Democratic Party v. Jones (2000), in which the Court struck down a roughly similar system on associational grounds.

Watson v. United States, 06-571

Does a defendant “use” a gun “during . . . a drug trafficking crime” if he barters some cocaine for a brand new AK-47? Maybe not what Congress had in mind when it provided a 5-year mandatory minimum sentence for gun-using drug dealers in 18 U.S.C. § 924(c)(1)(A), but the circuits are split 6-4, and the Fifth Circuit, applying the familiar maxim defendant perpetuum wrongum, ruled for the prosecution. This case will pit 1995’s SOC holding in Bailey v. United States that “use” requires “active employment” of the firearm against 1993’s SOC holding in Smith v. United States that “use” of a firearm under § 924(c)(1) includes trading a MAC-10 for cocaine. Counsel for the entrepreneurial defendant in this all-Sandra grudge match: SCt Today alum Mark Stancil. (Historical note: the great Alan Untereiner, whose name appears on Mark’s paychecks, successfully argued Bailey.)

Board of Education of the City of New York v. Tom F., 06-637

Whether the Individuals with Disabilities Education Act provides for reimbursement of private-school tuition when the child never participated in the public school system? Since I don’t have any IDEA what I’m talking about in this area of the law, I’ll leave it at that.


LaRue v. DeWolff, Boberg & Assocs., Inc., 06-856

The Court asked for the SG’s views on this potential ERISA blockbuster. The QPs are (1) Does Section 502(a)(2) of ERISA permit a participant to bring an action to recover losses attributable to his account in a “defined contribution plan” that were caused by a fiduciary breach? (2) Does Section 502(a)(3) permit a participant to bring an action for monetary “make-whole” relief to compensate for losses directly caused by fiduciary breach (known in pre-merger courts of equity as “surcharge”)? When the QPs are that soporific, you just know that bajillions of dollars hang in the balance. Further translation will be provided if the Court grants cert, but suffice it to say that a negative answer would kill a lot of the ERISA litigation plaguing businesses whose stocks tanked during the bust of 2000-01.

Opinion Watch: Only Justice Breyer’s opinion in Global Crossing v. Metrophones remains from the October sitting. It must be a doozy—perhaps no majority opinion for the Court. As for November, 3 cases out of 11 remain pending (counting the 2 partial-birth cases as 1), and two Justices haven’t written yet: AMK and DHS. That makes it highly likely that Justice Kennedy, as the swing voter and Stenberg dissenter, is writing at least one of the abortion cases. It is also very possible that the Chief is writing at least one abortion opinion. His only opinion from November was Jones v. Bock—the unanimous prison-litigation woofer—so it seems quite plausible that he kept a second, more important opinion from the sitting. Prediction: I’m expecting a relatively narrow opinion(s) from the Chief or AMK upholding the partial-birth-abortion ban, but not radically reversing course in the Court’s abortion jurisprudence. But woe betide the person who counts on Justice Kennedy to adhere to his previously expressed views on a subject.

Until next time, 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 [email protected]

Posted by Administrators on March 3, 2007 at 07:06 PM in Constitutional thoughts | Permalink


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Tracked on Mar 27, 2007 9:16:35 AM


"[A] negative answer would kill a lot of the ERISA litigation plaguing businesses whose stocks tanked during the bust of 2000-01."

Not necessarily true. Plan participants can bring class actions under section 502(a)(2. The question is whether individual plan participants can sue for breaches that affect only their own account.

Posted by: AF | Mar 5, 2007 11:19:31 AM

What’s up with Justice Alito taking three months to get out his second opinion of the Term when it was unanimous? Makes you wonder what else he may have been doing with his time.

There's a good argument that Kennedy has Carhart, so perhaps the Alito chambers are busy writing a dissent.

Posted by: Simon | Mar 4, 2007 7:39:33 PM

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