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February 20, 2007

More divided SCOTUS habeas work

Though I find the Supreme Court's 5-4 work in Philip Morris expanding the constitutional limits on punitive damages to be the biggest "sentencing" decision of the day (basics here), the Court also decided -- also by a 5-4 vote -- a case about statutory limits on federal habeas actions.  Here is Lyle Denniston's report from SCOTUSblog:

In the third and final decision, the Court, dividing 5-4, rules that the one-year filing period for a federal habeas challenge is not interrupted while the inmate has a petition for review pending in the Supreme Court.  Justice Thomas wrote the majority opinion in Lawrence v. Florida (05-8820).

All of the Court's opinions today should be posted at this SCOTUS link relatively soon.  Commentors are encouraged to opine about whether and why all of the new Chief's talk about the importance of consensus fades away when punishment is at issue.

February 20, 2007 at 10:44 AM | Permalink


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Regarding the lack of consensus: so you would have preferred these decisions to have been 9-0, instead of 5-4? Somehow I doubt it.

The Chief Justice can make a pitch for unanimity, but he is, at the end of the day, "first among equals," and the equals have strong views and even stronger personalities, to which consensus may well take a backseat if the issue is sufficiently important to them.

As an additional note, this may not be the kind of "consensus" the Chief is talking about. Certainly you're not going to keep a Justice from writing if he or she has a different view on the main issue. But note that, aside from Justice Thomas, no Justice wrote about substantive Eighth Amendment limits on punishment, which was the second issue in this case and one the majority did not reach. Neither of the other two dissents dwelled upon this issue, and Justice Scalia didn't join Justice Thomas's dissent, even though he is known to agree that there are no substantive limits on punitive damages. The near-absence of any discussion of the other issue in this case -- which past Justices or Courts might well have done, even if it was clearly not at issue in the decision -- is a more realistic understanding of what I think the Chief Justice's vision of "minimalism" might entail, particularly given that it's just not plausible to expect a Justice not to register an opposing vote if he or she really feels that way.

In other words, if there *is* going to be disagreement -- which inevitably there will be on certain issues -- then at least the disagreement will be kept on point, and not on tangential issues that a Justice just wants to throw in there for the sake of the public record.

Posted by: Bill | Feb 20, 2007 11:14:10 AM

I think the CJ's views on the desirability of consensus are being misrepresented.

He has said that it is preferable to decide a case on narrow grounds that can attract more votes, than to issue a polarizing opinion that just barely captures a majority. He has not said that he will vote for a result he doesn't believe in, merely for the sake of creating the appearance of consensus.

It stands to reason that there will still be plenty of 5-4 decisions, since there will surely be cases where no consensus is possible without justices compromising fundamental principles — something CJ Roberts has not suggested he would ever do. The best one can hope for is that, over time, there will be fewer 5-4 cases, not that they will disappear entirely. I think it will take a while before we know if this is going to happen.

Posted by: Marc Shepherd | Feb 20, 2007 11:25:25 AM

Maybe the lawyers would be willing to answer this question.

"The Supreme Court ruled on Tuesday that it is unconstitutional for a jury to award punitive damages out of a desire to punish a company for harming individuals other than those directly involved in the lawsuit -- that is, "strangers to the litigation." The Court ruled 5-4 in the case of Philip Morris USA v. Williams Estate (05-1256) that a punitive award based on harms done to such "strangers" would amount to a government seizure of private property without due process."

Is it possible the Court will strike down the banishment laws with similar reasoning? I haven't read the opinion yet, but, for example, a restraining order against an offender applied to a specific victim is constitutional, but a neighborhood banishment "based on harms done to such "strangers" would amount to a government seizure of private property without due process."

Posted by: George | Feb 20, 2007 12:41:44 PM

Just a quick thought, George - while the prosecutions you have in mind have specific victims, those victims are not parties to the litigation. The parties are the defendant and the people/state/commonwealth/government and therefore the general public aren't strangers to the litigation in the way other smokers are in the Philip Morris case.

In other words, I don't think this decision gets you anywhere on the banishment issue.

Posted by: JDB | Feb 20, 2007 1:17:22 PM

Thanks, JDB. That explains it.

Posted by: George | Feb 20, 2007 7:24:10 PM

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