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August 11, 2005

Roberts, the cert pool, and sentencing jurisprudence

Tony Mauro today has this great Legal Times piece which asks in its title "Will Roberts Jump Into the Supreme Court Cert Pool?"  The article provides terrific background on the SCOTUS cert pool and its potential problems given that every Justice, save for Justice Stevens, relies on the work of the pool and thus "virtually all of the cases that come to the Supreme Court are denied review and disposed of with only one or two law clerks — and no justices — actually reading the briefs." The piece has me thinking about not only the role of clerks in setting the High Court's agenda, but also whether a Justice Roberts' might change the Court's agenda even more than its jurisprudence. 

Of course, I think about these issues in the context of sentencing.  Regular readers know that I have previously ranted about the Supreme Court's expenditure of so much time and energy on death penalty cases when there are so many pressing post-Blakely and post-Booker legal questions needing to be answered. (Just some of my prior rants can be found here and here and here and here and here, and I have outlined in this post just some of the post-Blakely and post-Booker questions that I think merit the Supreme Court's immediate attention.)  One hope I have for a Justice Roberts is that he might help shift the Court's sentencing agenda, although this might be a vain hope given that he lacks any real trial court or criminal law experience.

I have long speculated that the SCOTUS emphasis on capital cases is a by-product of clerk interest and the operation of the cert pool.  Especially for folks not steeped in day-to-day criminal justice realities (which I think is a fair description of most clerks), death penalty cases likely always seem more important (and certainly more exciting) than non-capital sentencing cases — after all, the issue is a matter of life or death.  Moreover, I would bet that many clerks have had their fill of non-capital sentencing cases, as a result of a year dealing with the diktats of the federal sentencing system while clerking on a circuit court, before they get to the Supreme Court.

But those who are steeped in day-to-day criminal justice realities know that many non-capital sentencing issues, and not only those that arise post-Blakely and post-Booker, are far more consequential to far more criminal cases than many of the capital sentencing issues that SCOTUS takes up each year.  And so I will close by quoting again astute and potent comments on this topic from Mike at Crime & Federalism:

What's up with the Court's granting cert. on so many death cases?  The death penalty is rarely meted out.  If the members of the Court really cared about sentencing, they'd grant cert. on the various Blakely/Booker issues.  If the "liberals" cared so much about justice in sentencing, they'd not have crafted their lame and unprincipled Booker remedial scheme. Sure, "death is different," but death is also rare.  The horrors of prison are real and frequent.

Cross-posted at PrawfsBlawg.

August 11, 2005 at 03:27 PM | Permalink


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As a death penalty abolitionist, I often wonder whether the cause of abolition might actually be served by a Court that stepped back a bit from the capital cases. Although part of me is tempted to say that the Court deserves this glut in its workload for choosing to tinker with the machinery of death for so long, another part of me thinks that if the Court stopped trying to fix a system that (in my view) can never be just or trustworthy, the public might lose faith in that system much sooner.

(law student)

Posted by: Matthew G. | Aug 11, 2005 3:51:38 PM

As a criminal defense lawyer who has done trial work as well as capital habeas, I'm disheartened by the position taken in this post. Why try to drive a wedge between trial lawyers and habeas practitioners? The blame for the docket predominance of capital cases stems partially with Congress for complicating habeas practice with AEDPA, partially with the law clerk system, partially with Justices who have no clue about the practicalities of criminal law. But mostly it is caused by states having the death penalty and not providing financial resources or training to make sure the cases are handled properly from the get-go. They try to get death sentences on the cheap, and it is quite proper for capital habeas cases to "clog" the high court's docket. SCOTUS has its issues, but the main fix would come at the bottom of the food chain, not the top. There is also an unspoken "pass the buck" mentality in capital cases--with heinous crimes, the task of granting a reversal is pushed up to the most insulated layers of the judiciary.

Posted by: (lawyer) | Aug 11, 2005 5:54:35 PM

I agree -- at the heart of his argumenet -- with Doug's argument that clerks spend too much time on the sexy issues and not enough time on the important issues that remain unanswered term after term after term. The Court's clerks seem to focus on the "sexy" issues and not the nuts and bolts issues you would thinmk they would, although I think the number of dp cases taken by the Court in relation to the percentage of appellate court time they take is correct to a little low.

I should note, in the spirit of full disclosure, I run the site Capital Defense Weekly.

This stickig to "sexy issues" means, for example, that even in death cases the most pressing questions, are never addressed. Let me give just three examples from the capital realm. The first is the intersection of Ring v. Arizona and Harris v. Alabama, where the lower courts appear split; put another way, if the "advisory" jury splits can you still sentence to death (or even override a jury recommendation for life to a death sentence). The second is how in the name of all that is right and holy is Jurek v. Texas (which permits the current dp scheme in Texas) not been overturned since Texas's "kill'em all" capital sentencing special questions regime is such a radical outlier that it has been roundly rejected by every other jurisdiction in the country and presumingly falling well within the universal rejection of practice & procedure outlined by Coker, Atkins & Simmons that makes it unconstitutional. Third, what burden does the Eigth Amendment place on the state to prove whether a person deserves to die. These three simple questions have remain unanswered again and again.

Doug I am sure has a long list of noncapital issues we could talk about as well.

The problem is the clerks, no matter how incredibly gifted they are, just don't know enough about the practice of law, especially in the trenches. Put another way, it may be time to think about upping the pay for clerks and making clerk terms long enough so they know more about the beauty of our law and not just what looks sexy in the cert pool.

Posted by: Karl | Aug 11, 2005 7:50:39 PM

Nice point, folks, though the Steikers and others have reasonably argued that we perhaps would have seen more systemic reforms of capital systems if the Supreme Court had not given the death penalty a veneer of respectability.

Posted by: Doug B. | Aug 11, 2005 8:14:31 PM

I am surprised to read the suggestion that the attention given by the Supreme Court to capital cases is attributable to the cert. pool and the youth and inexperience of the law clerks. Capital caes have been receiving special scrutiny from the Supreme Court since long before there was a cert. pool. A more likely explanation is that many Supreme Court Justices, like most people, feel an obligation to give special scrutiny to a case before permitting someone to be executed.

Clerks may well play a part in identifying criminal procedure issues for Supreme Court attention, or in identifying the occasional "outrage" case that is taken for reversal even without a genuine certworthy issue. but I think it unlikely that they are responsible for the attention to capital cases (or that this attention would change if law clerks were older and better paid.)

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