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June 21, 2006

Terrific SCOTUS blogosphere analysis

Two of my favorite law professor bloggers have great posts on the Supreme Court's intriguing recent work in Samson and Youngblood (background here and here):

June 21, 2006 at 05:11 AM | Permalink


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Professor Bickel would be more than nervous at the use of GVR to whip state courts into shape. This is a horrible affront to basic notions of federalism.

Posted by: steve | Jun 21, 2006 8:21:49 AM

I guess Federalism is an infinitely manipulable concept, which can be twisted into whatever shape the speaker wants it to have. Most people would say that a narrow and minimal Supreme Court decision that allows the state court to correct its own errors is pro-Federalism, rather than an affront to it.

Posted by: Marc Shepherd | Jun 21, 2006 9:57:09 AM

Marc's comment bespeaks an assumption that there IS an error that needs correcting, and that it is the U.S. Supreme Court's duty to correct it.

The U.S. Supreme Court, however, is NOT a court of error correction (even in criminal cases where liberty is at stake).

With that as a given, "most people would say" that the Supreme Court should either grant cert and order full briefing on any substantial federal question it believes is worthy of certiorari, or it should simply allow the decision to stand (as it does with numerous other decisions -- even in death cases -- that seem plainly wrong) where the lower court applies the correct legal standard but comes to the wrong result. Where that lower court is a state court, the Court ought to be even more circumspect.

Posted by: steve | Jun 21, 2006 10:07:44 AM

Even if "giving the State court the chance to correct its [supposed] error" is pro-federalism (which it is not), Bickel would have hated the institutional effect of the GVR-for-nothing. GVR-for-nothing is a license for the combined use of ambiguity ("if this case comes back to us again, we might have to overturn you") and fear of the velvet-covered judicial fist (on the part of the State court) to achieve an apparently-desired particular result, without transparency or accountability, by SCOTUS. It's an expansion of the powers of SCOTUS that Bickel would have absolutely detested. Two of the limitations on the the power of the Court are its small size and the (presumed) requirement that the Court decide cases based on reasoned opinions. The GVR-for-nothing circumvents these limitations on SCOTUS by apparently directing a lower court to change its decision without SCOTUS itself having to explain, in a reasoned opinion, why the decision should be changed. GVR-for-nothing is the exercise of power without accountability, pure and simple. In other contexts, that's called dictatorship or, as Bickel might have said, Judicial Imperialism.


Posted by: Mark | Jun 21, 2006 10:23:34 AM

The notion that the Supreme Court is not an error-correcting court has nothing to do with Federalism. It is mostly a modern practical rule flowing from the fact that the Court's resources are too scarce to allow it to hear every case in which an error might have occurred. Nevertheless, every year, the Court grants cases that do not fit the traditional criteria for cert., and in which the only discernable aim is to correct an error. None of the nine Justices disputes that Brady is applicable to the States, so a Brady error is indisputably subject to Supreme Court review.

I do agree with Justice Scalia that this case does not fit the pattern of the traditional GVR. There seems to be a sufficiently developed record to support either a summary reversal or a full briefing on the merits. But on a very conservative Federalist-minded Court, that viewpoint attracted only one other vote.

I do not agree that a Per Curiam GVR has the effect of "burying" the eventual outcome, and evading accountability. Any Supreme Court decision -- even the decision to remand for a do-over -- is highly visible.

Posted by: Marc Shepherd | Jun 21, 2006 11:44:37 AM

I'm sorry, but the federalism and error-correction issues are certainly related. When the Court uses the GVR procedure to correct what it perceives as an incorrect application of settled law (and not a wrong statement as to what the law is), and when the Court does it to a state court, the Court impinges on state sovereignty.

That the Court does it routinely doesn't justify it as a practice. If the Court wants to engage in error correction, it has ample opportunity to do so with criminal cases decided in the federal courts of appeals.

Posted by: steve | Jun 21, 2006 11:52:43 AM

A GVR, when there has been no intervening statute or case, certainly has, in Marc's words, "the effect of burying the outcome and evading accountability," because we do not have the benefits of the Supreme Court's REASONING. If the members of the Court think that a Brady violation has occurred, they should explain why. Their explanation shows us their understanding of the facts. Their explanation helps us understand Brady. Their explanation helps us to apply Brady to other situations. Their explanation helps us to predict how the Court will apply Brady to other situations (and it binds the Court -- weakly, but nonetheless -- in future cases). Right now, we don't have any of these benefits from SCOTUS' GVR-for-nothing.

Importantly, because we can't analyze SCOTUS' reasoning, we can't evaluate their decision to reverse; for that reason alone, a GVR-for-nothing absolutely, to use Marc's words, "evades accountability." As unelected policy-makers who serve life terms, the ONLY accountability that the members of the Court have is our ability to analyze their reasoning. If they don't deign to write their reasoning down, then they have no accountability.

What if the Court's reversal is based on a misunderstanding of the facts? We, and the State courts, will not know, because SCOTUS hasn't bothered to write down its understanding of the facts.

In the end, A GVR-for-nothing has all the reasoning of "Reversed Because We Say So." Four-year-olds, and dictators, use this "reasoning" all the time. The fact that Scalia could only get the agreement of one other justice shows just how blind the Court is to its own abuse of power. Bickel would have been chagrined, but not surprised.


Posted by: Mark | Jun 21, 2006 12:30:36 PM

Steve, it sounds like you want to re-litigate the incorporation of the Bill of Rights. Although that position has a few notable adherents (Robert Bork), surely it's time to admit we are long past that. It's a bit like trying to re-fight the Vietnam war in hopes of a better outcome.

I know it's attractive to compare the Justices (even those who are widely admired conservatives, like Roberts and Alito) to four-year-olds and dictators, because it spares us the trouble of thinking. Nevertheless, we should avoid the temptation.

Posted by: Marc Shepherd | Jun 21, 2006 12:38:35 PM


You appear not to understand that the name of the person who posts a comment appears BELOW the comment. Thus, your post just above intends to respond to MARK's post, not mine.

I would appreciate you making that clear, because had your post above been responding to the one I actually wrote (two above), I would have had some choice words for you......

Posted by: Steve | Jun 21, 2006 2:29:35 PM


I'll let the readers decide whether my posts above are devoid of thinking.

I've argued above that reason-less reversals are bad. Yes, I even argue that reason-less judicial decisions are akin to the "reasoning" of four-year-olds and dictators. I stand by my analogy for the reasons stated above.

You, on the other hand, have not advanced ANY argument explaining why you think that reason-less reversals are good. I guess (I have to guess, because you haven't taken the time to make a coherent argument) that you like GVR-for-nothing reversals in the first place because you don't actually like reading, or crafting, substantive arguments yourself.

I assume that the first paragraph of your post was directed at Steve's comments. Your comments about the Incorporation Doctrine are unclear, to both Steve and to me; you certainly do have a distinct, personal weakness when it comes to drafting a coherent argument. I suggest that you clarify your Incorporation Doctrine comments for us, and then Steve can address your Incorporation Doctrine "argument" himself. I look forward to hearing what he has to say.


Posted by: Mark | Jun 21, 2006 4:34:15 PM

If the first sentence Marc Shepard's post was -- as Mark suggests -- indeed directed at me, then I have this response, which is far more tempered than the one I uttered aloud in my office when I first read the post and thought that both paragraphs were directed at me. Basic notions of decency (and perhaps federal obscenity laws) forbid me from reprinting those utterances here.

Arguing that a GVR of a state court decision implicates federalism principles IN NO WAY is tantamount to an argument that the bill of rights ought not to apply to the States through the 14th Amendment. The fact that you would even level that accusation -- and invoke Robert Bork in so doing -- strongly suggests that you harbor a POLITICAL view that (1) it is the duty of a federal court to correct all constitutional errors, regardless of procedural barriers (such as proper preservation, retroactivity, etc.) such that (2) anyone who invokes the hoary principle known as federalism is "one of those" who revel in the idea of a state court judgment infected by federal constitutional error that a federal court is powerless to correct.

If that's the basic substance of your accusation, then you are a fool for making it without bothering to (1) consult a basic treatise on Constitutional Law or Federal Courts, (2) find out what I do for a living (criminal defense attorney), and (3) review my past and current writings (several of which Professor Berman has posted on this Blog).

For exmaple, in a forthcoming National Law Journal Op-Ed, I invoke federalism principles to argue that state courts are perfectly free to afford broader retroactive effect to new federal rules than a federal court can under Teague v. Lane. I invoked similar federalism principles in a New Jersey Law Journal article published in October 2005 to argue that state courts may deem a Sixth Amendment violation "per se reversible" even if a federal court would deem the same violation harmless beyond a reasonable doubt.

I checked the Martindale and Findlaw sites and could find no evidence that you are an attorney admitted to practice in any U.S. jurisdiction. If you are a law student, then perhaps there's some hope that you will learn that the law isn't simply a disguise for preferred policy outcomes. And perhaps you'll learn that federalism isn't a dirty word used only by the likes of Robert Bork, John Roberts and Samuel Alito.

If your're not a law student, then I can only conclude that you are a layperson who harbors a political viewpoint (all constitutional errors MUST be remedied lest the Republic perish) that blinds you to to the basic truth -- that not even liberal judges and law professors dispute --that federal court review of state court judgments implicates sensitive federalism concerns.

I suggest you be a little more circumspect before you make inaccurate assumptions about other peoples' motivations and political views. It makes you sound extremely unsophisticated and immature.

Posted by: Steve | Jun 21, 2006 5:12:25 PM

Steve, For what it is worth, Martindale and Findlaw are hardly dispositive as to whether someone is a lawyer. Of the five lawyers in my immediate family (i.e., all members of my family), only two of them are listed in either publication.

Posted by: S.cotus | Jun 22, 2006 9:53:45 AM


You are absolutely correct. I also did a Westlaw seach -- in Allfeds, Allstates and JLR-PRO (my limited law review database) -- and found not a single decision or publication containing a Marc Shepherd.


Posted by: Steve | Jun 22, 2006 10:14:04 AM

Well....just to answer a few of the points.

Depending on which law blog you read, the Court's "GVR-for-nothing" was either pro-Bickelian or anti-Bickelian. There are reasonable arguments on either side. A fair inference is that there's a good deal of wiggle room in interpreting precisely what the good Professor actually meant.

A corrollary, I think, is that when those who have a contrary point of view liken their opponents to "four-year-olds" and "dictators," invective is being substituted for serious thought. It's the same reason why dissents generally include the word "respectfully." It's an acknowledgement that the other side of the coin is reasonable, even when one disagrees with it. The opinions of four-year-olds and dictators, on the other hand, are not reasonable.

My comment on the incorporation of the Bill of Rights flowed from Steve's suggestion that "If the Court wants to engage in error correction, it has ample opportunity to do so with criminal cases decided in the federal courts of appeals." Once one accepts Incorporation, then one must surely accept that the Court's supervisory authority applies equally to state courts on any issue where the Federal Constitution has authority. Rights don't mean much if the Court's authority to enforce them is somehow diminished.

We all acknowledge, I think, that the Court is not going to review every case in which an error may have occurred. 99% of the Court's docket is summarily dismissed without explanation, and there is always much hand-wringing about petitions granted without any apparent reason, and petitions denied when all of the classic criteria seem to be met. Getting one's case heard is a bit like winning the lottery. That's the way the process works, and I don't see it changing.

But if a case properly presents a Federal issue, then it is fair game. As I noted above, I agree with Justice Scalia that there seems to be a sufficiently developed record to decide the case on the merits. However, seven intelligent and experienced people didn't think so (i.e., the majority).

Posted by: Marc Shepherd | Jun 22, 2006 12:59:31 PM

Marc wrote this:

"Once one accepts Incorporation, then one must surely accept that the Court's supervisory authority applies equally to state courts on any issue where the Federal Constitution has authority. Rights don't mean much if the Court's authority to enforce them is somehow diminished."

Marc: the Constitution isn't self-enforcing. It is up to Congress to define the appellate jurisdiction of the Court, and it is up to the Court to decide how it will use that jurisdiction by deciding which cases to take. Thus, no one is "diminishing rights," and no one is suggesting that the Court lacks authority to enforce them in a particular case.

The Court, as you concede, denies Cert. in many cases with a seemingly clear error infecting the judgment, and yet the sky isn't falling. With all the substantive and procedural protections, and multiple levels of appeal and habeas review, we still tolerate a certain amount of erroneous outcomes. But surely that's better than how criminal justice functions in Singapore or Kenya.....

I and others here are trying to point out that there's a big difference between hearing an appeal just to correct an error of (federal statutory or constitutional) law that infects the judgment and hearing an appeal because the law the lower court applied is unsettled in conflict with another court's treatment of the issue.

In a case in which the Court grants cert. to decide an important issue, it may well end up correcting an error in the lower court's judgment (just as it may affirm the judgment, but for different reasons). The use of the GVR to engage in mere error correction (or, worse, to tell a lower state court to perform a "do-over") is at odds with the traditional understanding of the Court's appellate jurisdiction.

Of course, if one approaches this issue with the view that state courts are out there like cowboys, just looking to stick it to criminal defendants safe in the knowledge that relief through certiorari or federal habeas (with AEDPA standards) is well nigh impossible, then it is understandable why one would cheer the SCOTUS's using the GVR to whip a state court into shape....

Posted by: Steve | Jun 22, 2006 1:40:55 PM

I'll add no more to Steve's treatment of the federalism argument.

In case my rhetoric (deemed "invective" by Marc) was too strong for the stomachs of some, Marc's post about the "reasonableness" of the GVR-for-nothing highlights, in my humble opinion, with all due respect for the dear and kind gentleman from _______, the unreasonableness of the practice. The GVR-for-nothing is unreasonable, I believe, because no reasons for the reversal are given. Maybe Marc wouldn't get so upset if I only said that GVR-for-nothing is "un-reasoned." Of course, that would be tautology. So, not only is the practice un-reasoned, but it is unreasonable -- and bad, or wrong, or unwise, or improper -- and whatever term would keep Marc from becoming unhinged.

"Invective," by the way, does not mean, as Marc seems to believe, an absence of careful thought. Sometimes thinking people (like me) deem an idea or practice so repugnant that they denounce it in strident, harsh, vituperative language. This is rhetoric, and it is invective, but it is far from unthinking. To wit: I strongly believe that the Court -- because it is unelected and composed of members who have the job for life -- should operate within its traditional limits, one important one of which is that the Court does not overturn lower-court decisions without providing a reasoned explanation. My rhetoric on this subject was thought out, even if it causes Marc such obvious distress. As one clever prior post highlighted, "Uh-oh, the Language Police are handing out tickets again."

I'm still waiting to see why Marc believes that GVRs-for-nothing are a good thing. Looking at the posts above, I am confident that Marc is far quicker to resort to ad hominem attacks than I am. And not only is Marc quicker with the ad hominem attack, but he remains, apparently, incapable of articulating a thesis. This is too bad, because I would, through it all, like to see him craft a straightforward argument (Thesis: GVRs-for-nothing are a good thing). The ad hominem attacks and non sequiturs really just avoid the issue.


Posted by: Mark | Jun 22, 2006 4:44:02 PM

Let me pose a simple question that might better elucidate Marc's thinking:

Assume a habeas case in which there is a clear, non-harmless constitutional violation that the inmate failed to present to the state courts for resolution. The district court is absolutely convinced that the inmate deserves relief, in part because a retrial without the violation might lead to a not-guilty verdict. But a federal statute prevents the district court from granting habeas relief where the inmate forfeited the error. Should the federal court go ahead and remedy the error because it's more important to remedy constitutional wrongs than it is for an Article III court to comply with an Act of Congress limiting its jurisdiction?

Posted by: Steve | Jun 23, 2006 9:36:39 AM

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