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June 1, 2010

"Classic" split 5-4 SCOTUS ruling in reversal of Sixth Circuit habeas grant

In a ruling that covers Miranda and IAC issues, the Supreme Court this morning has reversed the Sixth Circuit yet again in is Berghuis v. Thompkins, No. 08-1470 (S. Ct. June 1, 2010) (available here). The ruling is a "classic" 5-4 split with the majority opinion written by Justice Kennedy, and with Justice Sotomayor filing the chief dissent joined by Justices Stevens, Ginsburg, and Breyer.  The discussion of ineffective assistance of counsel issues, as well as application of AEDPA review of a state conviction, makes this Thompkins ruling significant even for those not focused on the main Miranda issue that divides the (so-called) conservatives and liberals in this ruling.

As my post title hints, the vote break-down in this Thompkins ruling (as well as the much different vote break-down in today's Carr opinion noted here) confirms my impression that the "classic" 5-4 split votes in SCOTUS criminal justice cases emerges principally when the Court is reviewing habeas decisions reviewing state convictions.  But in most other criminal cases lately, such a 5-4 split seems rare.  (I think I will ask a research assistant to double-check this impression with data after the end of the current SCOTUS Term.)

June 1, 2010 at 10:33 AM | Permalink


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Political science methodology studies on judicial partisanship influence in the federal appellate courts have found that criminal law, generally, is among the least partisan of the subject areas faced by the federal criminal courts.

My suspicion is that this is largely because the high volume of case law has definitely resolved many of the major issues, and has narrowed the scope of outstanding issues to obscure ones with less of a partisan taint.

Posted by: ohwilleke | Jun 1, 2010 4:23:54 PM

Of course, the exceptions that prove the rule are death penalty cases where there are not even any panel collegiality effects.

Posted by: ohwilleke | Jun 1, 2010 4:25:13 PM


Any thoughts on why the Court went through all the trouble with de novo review when they could have just disposed of it under either sec. 2254(d) or (e)? I've never understood why this one wasn't a quick per curiam.

Posted by: karl | Jun 1, 2010 5:53:57 PM

karl, I think the reason is pretty obvious--the majority didn't like some of the imprecise language in Miranda and some of the progeny, so they took this as an opportunity to clean it up.

Sotomayor's view that this was somehow improper doesn't stand serious analysis. First of all, it is perfectly acceptable in an AEDPA case to look at the merits. At the end of the day, the prisoner is only entitled to habeas relief if there's a Constitutional violation, so it's a question lurking in every AEDPA case. Second, in this case, the precedent is obviously murky, and there is considerable imprecision in the Miranda opinion itself. Therefore, at the very least, it's somewhat messy to figure out if a lower court reasonably applied murky precedent without creating a rule (in so many words) that where SCOTUS precedent is less than clear, the lower courts can basically do what they want (certainly Sotomayor et al don't want that, do they?). Finally, how in the world do you actually write an opinion in this case that holds that the state courts acted reasonably without all but tipping how the majority would decide on the merits?

Posted by: federalist | Jun 1, 2010 6:58:54 PM

You can save someone some work. SCOTUSblog keeps a stat pack for each term.


Posted by: ihate2fly | Jun 1, 2010 7:48:19 PM

Clean it up?

They took this opportunity to signal law enforcement authorities it's OK to trick suspects into surrendering their Fifth Amendment rights.

Wouldn't it just be easier for the five justices to proclaim that as long as their majority stands cops and prosecutors can get away with pretty much anything.

The cops and police chiefs I've known seldom complained about Miranda. The reading of rights mostly seems to be a problem for conservative pols always on the prowl for yet another bogus issue to exploit.

Posted by: JohnK | Jun 2, 2010 5:04:45 PM

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