« Mario Claiborne killed in strange robbery... now what?!?!? | Main | A big federal sentencing day for so many reasons »

May 31, 2007

Could SCOTUS address below-guideline sentences in another case?

A thoughtful reader asks:

Wouldn't it be possible for the Surpeme Court simply to...

  1. take another case on cert for the same issue in Claiborne (there are a ton of appeals out there on the same issue; US v. Eura, which is on cert from the 4th Cir, to name just one),
  2. decide in its discretion that it doesn't need oral argument or briefing to decide the case (certainly, it has discretion to do so),
  3. and write effectively the same decision with a different facts section? 

Is there anything stopping it from doing this?

May 31, 2007 at 05:43 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Could SCOTUS address below-guideline sentences in another case?:


My response is in the other thread, but it may be so far down that no one sees it. At the risk of redundancy, I'll repost it here.

Normally, if they take a second case to replace a dropped one, they would give the parties the benefit of full briefing and argument (e.g., Atkins to replace McCarver). However, in Espinosa v. Florida, 505 U.S. 1079 (1992), they decided the case summarily, and adversely to Florida, where that state had already made its argument in the dropped case, Sochor. See Lambrix v. Singletary, 520 U.S. 518, 539 (1997).

Posted by: Kent Scheidegger | May 31, 2007 6:32:25 PM

I'm not as sure as you that the Court has discretion to adjudicate such a case -- you might have a due process problem if the replacement petitioner isn't afforded an opportunity to brief his or her case. I suppose a (probably weak) argument could be made that because the Court's docket is discretionary and the Court has no obligation to take the case at all, petitioner's due process rights would not be offended by foregoing briefing, but I'm skeptical. In any event, doing what you propose would result in the appearance of rushed justice without serious consideration of the replacement case, and I can't imagine that's something the Court would want to do even if it could.

The closest analysis I could find on a very quick look is Lawson v. Dixon, 1994 U.S. App. LEXIS 14594 (4th Cir. 1994), which is unpublished:

"The core of the procedural due process rights under the Fourteenth Amendment guarantee a party notice and an opportunity to be heard. Here, the North Carolina Supreme Court reached the case on the merits from a petition for writ of certiorari, without Lawson having had the opportunity to brief the matter on its merits prior to its decision. Given the rapidity with which the entire adjudication took place, and the apparent lack of notice to Lawson that the court would determine the case on the merits without first granting the writ of certiorari (and of course Lawson never having set out the merits of his legal argument at any point in the proceedings), we are highly disquieted by the occurrences that resulted in the May 17 order. However, we must acknowledge that the plaintiffs did, eventually, brief the issue of the constitutionality of the videotaping matter on the merits and that this opportunity to ask for rehearing, under these particular circumstances in this sui generis case, appear to have given the state court a reasonable opportunity to rectify its error in denying notice, and thus satisfied the bare minimum requirements of procedural due process under the Fourteenth Amendment. 18 Wright et al., Federal Practice and Procedure § 4415, at 129 (1981).

Posted by: Anonymous | May 31, 2007 6:36:46 PM

It never occured to me that not having oral argument or full briefing would be a problem. Doesn't the court summarily decide cases on the cert petition briefs now and again?

I would also be willing to bet if they simply picked a case being handled by the public defender's office, they'd be willing to waive further argument.

Posted by: Elson | May 31, 2007 6:59:10 PM

The fact that this was a federal case, and that the SG's office has already argued the legal merits if fine, if the ruling is against the government.

But, if the ruling is for the government, and I were the defendant whose case was being decided and didn't think that Claiborn's counsel did a good job, I'd certainly be unhappy.

Of course, justice is as SCOTUS does, no one gets to complain if it ignores due process in its own process.

Posted by: ohwilleke | May 31, 2007 7:49:17 PM

There is no due process problem at all with summarily consolidating a new companion case for Rita and deciding it on the cert papers in a single opinion. Cases are decided summarily on the cert papers a dozen or more times every year. I'm not so sure it's necessary in this case, however. As the co-author of FAMM's amicus brief, I don't remember any of the briefs (other than the petitioners') drawing any real distinction in principle between the two cases. The issue is thoroughly briefed. If the Court does want to take another 8th Cir "extraordinary reasons" case from the pending cert backlong, they could do that tomorrow (literally), and the two cases (the new one and Rita) could be decided right on schedule in June, with little difficulty.

Posted by: Peter G | May 31, 2007 9:09:54 PM

I'm sick of this "test case" thinking. Facts matter. They matter a lot. They may not affect how a judge rules (although I doubt that), but they certainly affect how the "consumers" of legal opinions (lawyers and lower-court judges, particularly) read those opinions. So you can't just "get another below-Guidelines case," plug in the names, and churn out the same opinion. It won't be the same opinion. It will have a different set of facts.

Also, the process matters. Not just the litigants, although they SHOULD matter, but the entire system depends on the principle (fiction?) that judges decides CASES with all their messy, specific facts -- not just theoretical questions of law.

Finally, "test case" thinking weakens the Supreme Court as an institution. If the facts don't matter, if judges are just deciding theoretical issues, then their political legitimacy is called into question to a greater degree than otherwise. Anyone can decide a legal (political?) ISSUE. Judges, with their experience as lawyers and lower-court judges dealing with thousands of CASES, have a legitimate claim on doing something different. So, "Hey, it's just a legal question" demeans the litigants (these are real people, after all), it demeans the Court, and it demeans our entire system of law.

I know this whole law thing is messy. Distinguishing cases based on the facts and all. It would be just easier for some Philospher-Kings on Mount One First Street to announce the law from on high, rather than having to deal with complicated, contradictory, unpleasant, irrelevant facts. But that's our system. That's why we have judges. That's why we have argument. That's why future cases are usually uncertain. That's what it means to be heirs of the Common Law. Facts.

Sorry for the venting. Bad day. I was hoping that Claiborne would help out a client.


Posted by: Mark | Jun 1, 2007 12:31:31 PM

I think the Justices have more-or-less admitted publicly that many of their cases ARE test cases. The fact is, they didn't grant Claiborne's cert. petition because they particularly cared about Mario Claiborne. They granted it because hundreds of cases presented the identical issue, and the legal system was eager for a national solution, which only the Supreme Court can provide.

I agree with the comment above that if the case was going against Claiborne, there would be a serious issue of perception to substitute another name, and then affirm. But if the case was going in Claiborne's favor, it would not be seriously problematic to substitute another defendant.

And as others have noted, the Court is not obligated to grant full briefing or oral argument in every case. This is not to say the Court will do that here. Only that they sometimes have done so, and may do so again.

Posted by: Marc Shepherd | Jun 1, 2007 5:25:58 PM

"I would also be willing to bet if they simply picked a case being handled by the public defender's office, they'd be willing to waive further argument."

You know, the fact that the issue was brought by a public defender's office doesn't mean they weren't concerned about the quality of the briefing. In fact, what you say is pretty insulting to people who sacrifice tens of thousands of dollars and many many hours working in that capacity. I'd take a public defender in a serious federal case over 95% of the private attorneys in the system. Of course you dont offer any substantive critique of the briefing produced by these offices, and provide no link or evidence to bolster your insulting assumption that public defenders are to incompetent or lazy to contribute to the Court's consideration of this issue.

Forgive my posting at work. In the dead of night. On Friday.

Posted by: RW | Jun 2, 2007 12:15:31 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB