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Thursday, June 18, 2015

Hittson, the Slightly Superfluous Signal?

This is definitely not the biggest story coming out of the mound of opinions that the Court released today, but I wanted to briefly close the loop on my post from a few days ago on Justice Ginsburg's concurrence in the denial of certiorari in Hittson v. Chatman. In the post, I suggested that Ginsburg's Hittson opinion was a signal that Ylst v. Nunnemaker is still good law. But now, just three days later, the Court issued a majority opinion in Brumfield v. Cain that cites and applies Ylst, thereby making fairly clear the point that Ginsburg wrote to make. So, why did Justice Ginsburg write her concurrence?

By way of background, here's a key passage from Justice Ginsburg's Hittson concurrence:

The Eleventh Circuit plainly erred in discarding Ylst. In Richter, the only state court to reject the prisoner’s federal claim had done so in an unexplained order. See 562 U. S., at 96–97. With no reasoned opinion to lookthrough to, the Court had no occasion to cast doubt on Ylst. To the contrary, the Court cited Ylst approvingly in Richter, id., at 99–100, and did so again two years later in Johnson v. Williams, 568 U. S. __, __, n. 1 (2013) (slip op., at 6, n. 1).

And here's a passage from Justice Sotomayor's opinion in Brumfield saying largely the same thing:

In conducting the §2254(d)(2) inquiry, we, like the courts below, “look through” the Louisiana Supreme Court’s summary denial of Brumfield’s petition for review and evaluate the state trial court’s reasoned decision refusing to grant Brumfield an Atkins evidentiary hearing. See Johnson v. Williams, 568 U. S. ___, ___, n. 1 (2013) (slip op., at 6, n. 1); Ylst v. Nunnemaker, 501 U. S. 797, 806 (1991). 

So, as I tweeted this morning, I guess RBG wasn't kidding when she wrote in Hittson that the "look through" approach was still good law!

But if that's so, wasn't Justice Ginsburg's Hittson concurrence  superfluous? The best answer I can come up with is that Ginsburg wanted to underscore the vitality of Ylst, lest the Eleventh Circuit overlook the relevant passage in the Brumfield majority or choose not to go en banc, thereby forcing action by the Court. Ginsburg may also have wanted to address the differences between the review procedures in the two state supreme courts, which the Eleventh Circuit might have distinguished.

That still leaves the question (implicitly raised by Steve Horwitz) of why Justice Ginsburg didn't try to push back the denial of certiorari in Hittson another week. Hittson had already been distributed more than a few times, and if she had held off for one more distribution then she could point to Brumfield as proof positive of her view. I'd be curious to hear any theories as to this very little mystery.

[I tweaked the above just after posting it.]

Posted by Richard M. Re on June 18, 2015 at 09:36 PM | Permalink


Josh, That part doesn't strike me as so odd, since it requires more votes, which might not have been forthcoming.

Posted by: Steve H | Jun 19, 2015 9:59:03 AM

It also seems odd that the Court would deny cert outright instead of just holding it for another week and then GVR-ing it in light of Brumfield

Posted by: Josh Block | Jun 19, 2015 9:52:07 AM

I'm not sure it's so unusual to hold one case for another that is "unrelated." I suppose using a "relist" to do the work of a "hold" might be bad form, although we're talking about a tiny delay here.

Posted by: Steve H | Jun 19, 2015 1:21:44 AM

Also, Will, I'm dubious that such a norm exists, since I think it's quite routine to delay the issuance of opinion 1 simply because it cites unrelated opinion 2 for some proposition and opinion 2 isn't yet ready for issuance.

Posted by: Hash | Jun 19, 2015 12:58:20 AM

@Doug: for the reasons stated by RBG in her opinion concurring in the denial of cert: the result would have been the same in Hittson had the eleventh circuit looked through. Also because an en banc petition is pending. (In fact, according to pacer, the mandate has been held.)

Posted by: KLK | Jun 19, 2015 12:08:54 AM

Why deny cert, Will? They could have gvred it.

Posted by: Doug | Jun 18, 2015 10:32:00 PM

That might well be right, or ought to be right. But note that RBG presumably drafted her opinion as a signal from the outset. And the signal pertained to cases other than the one she was writing in. So in spending time writing her opinion and having the case repeatedly relisted, she might already have pushed against the asserted norm. That is, she postponed resolving the cert case to make the signal, and so postponing it a little more to make the signal better seems like more of the same. Or arguably so, at any rate.

Posted by: Richard | Jun 18, 2015 10:19:10 PM

Maybe there's a norm that it would be an inappropriate use of the relisting power to hold a cert. denial for an unrelated case?

Posted by: Will Baude | Jun 18, 2015 9:51:17 PM

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