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December 14, 2015

SCOTUS yet again summarily reverses circuit reversal of state death sentence

The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror.  Here is part of how the opinion starts and ends:

A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit.  During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed.  The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments.  That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....

The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire.  But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.

The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment.  Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....

As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).

Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:

The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?

December 14, 2015 at 09:43 PM | Permalink


'rat judges get bench-slapped. In fairness, Helene White was appointed by Bush 43, but only because 'rats insisted that he appoint her so that he could get others appointed. And, of course, a GOP judge was in dissent.

It's high time that the legal blogs and news coverage acknowledge that the problem with AEDPA defiance is almost exclusively a 'rat judge problem.

And the thing is---if they are blowing off the law in favor of capital murderers (other than Judge Clay of Bobby v. Bies claim, who is just plumb stupid (although the ABA gave him a unanimous WQ rating)) and other criminals numerous times how can we trust them to get other things right?

The really funny thing--Democrats love to crow about the "rule of law." What does it say about the rule of law that judges repeatedly blow off the law and have to be admonished to get it right?

Come on guys, anyone care to defend the 'rats?

Posted by: federalist | Dec 14, 2015 10:07:04 PM

By the by, here's what Judge Clay had to say about his opinion in Bies:

"Bies v. Bagley i[Bobby v. Bies at SCOTUS] s an easy case. It warrants no further review by the en banc Court. As the panel opinion correctly explained, the collateral estoppel doctrine which the Supreme Court articulated in Ashe v. Swenson mandates that Michael Bies be granted a writ of habeas corpus. Moreover, even if any uncertainty did exist regarding the proper application of Ashe, Bies’ case provides an abysmal vehicle to resolve such alleged uncertainty because the Supreme Court’s decision in Sattazahn v. Pennslyvania provides an alternative grounds upon which Bies is entitled to relief. Thus, despite the dissent’s efforts to stir controversy where none exists, the en banc Court correctly decided not to subject Bies to further unnecessary litigation."

Of course, this moron Clay ate 9-0 reversal at SCOTUS. And jeez---"abysmal vehicle"? Can writing possibly be that bad?

Posted by: federalist | Dec 14, 2015 10:28:46 PM

Of the thousands of cases, SCOTUS picks out a few habeas cases where they hold that the lower court incorrectly applied the rules in a blatant fashion. Multiple times, the cases taken are divided. Like death penalty cases liberal justices probably have concerns about but decide not to make separate judgments about when they are not taken or stayed by the Court, no written dissent means various things here.

In other cases, SCOTUS determines the lower court didn't decide things correctly the other way. In a few cases, multiple cases are taken regarding the same matter. I assume it is a "sad commentary" when the Supreme Court multiple times have to address defense protections too. It doesn't shock me that Kent Scheidegger (and others) leans a certain way on the judgment of lower court judges here as compared to some other people.

Posted by: Joe | Dec 14, 2015 10:49:00 PM

Joe is at it again---not a defense of the 'rat judges and their lawless opinions, but rather a lame attempt to minimize the issue and portray Kent Scheidegger as an ideologue.

The problem, Joe, is that there are no real analogues to these summary reversals. These aren't decisions where there are legitimate disputes about what the law is (or should be)--this is just lawlessness. You whine in other posts that people have issues with AEDPA---but it is the law, and no Supreme Court Justice (AFAIK) has even questioned its constitutionality. You can't defend any of this, but you try to minimize the import of these repeated summary reversals. You're in good company---law profs won't say a word, and neither will the press. But you and both know you can't go toe to toe with me on this.

Posted by: federalist | Dec 15, 2015 8:27:22 AM

The number of times the Sixth Circuit has been reversed in recent years is embarrassing. And, a high percentage of those reversals have been 9-0 or close to it, especially in AEDPA cases. Judges such as Clay, Moore, Keith, Merritt, and White care very little about the actual law--they will do anything to get the result they want in a particular case. If you are repeatedly getting reversed unanimously, it is a good indication that you either (1) don't know what you are doing or (2) know exactly what you are doing--intentionally failing to apply the law.

Posted by: Embarrassing | Dec 15, 2015 9:28:17 AM

The 6th is now joining the 9th and 2nd on AEDPA reversals...time to start publically claling these Rat Judges out for disregarding SCOTUS LAW. I like how these lib judge reach back to case law circa 1970s over 2010s. Long Live AEDPA.

Posted by: DeanO | Dec 15, 2015 10:16:33 AM

There were cases where the Supreme Court more than once took up a lower court that as many as seven of nine justices deemed them to have ignored an constitutional protection.

It is duly noted that conservatives have different views on the merits in these cases. These include those who think SCOTUS is "lawless" in multiple cases, sometimes by large margins. They are passionate about this, just like the other side is passionate their way. At another time, we would see more cases where justices would use summary reversals the other way. But, we have had three straight conservative Supreme Courts, so apparently of the thousands of cases, the Supreme Court can nearly never find blatant cases requiring summary reversals for defense or for non-criminal cases.

One person who "whines" about AEDPA (translation -- provides a criticism and/or points to the other side of the debate) is Alex Kozinksi, a Reagan appointee: http://georgetownlawjournal.org/files/2015/06/Kozinski_Preface.pdf

Another would be John Noonan:


To toss in a Carter appointee for balance:


But, it need not be unconstitutional. Conclusions are being made here on how it is being applied. We are not talking one or two judges here or even one lower appellate court at this point. We used to hear how the 9CA was lawless (and not just by panels with Steven Reinhardt type judges). Now, we have another whipping circuit. As in Glossip, no shock that conservatives on the Supreme Court are annoyed. The breadth of the alleged problem will be seen differently by liberals and libertarians and I'm thinking they aren't as much behind this drive, noting that in various cases they agree the lower court was wrong. Lower courts that will have a different mind-set given their job is different than the Supreme Court that take a few cases a year, not see a bunch of these cases year after year, multiple times with serious problems.

Still, if we grant even the liberals here think the courts below are lawless, I guess it should be appreciated by conservatives out there who don't think much of Ginsberg, Breyer, Sotomayor (who publicly criticized AEDPA) and Kagan.

Posted by: Joe | Dec 15, 2015 10:37:41 AM

C & C is master of sad commentaries.

Posted by: Anon | Dec 15, 2015 1:17:27 PM

Once again, Joe, you spread organic fertilizer:

"There were cases where the Supreme Court more than once took up a lower court that as many as seven of nine justices deemed them to have ignored an constitutional protection." In other news, water is wet. Not all 7-2 or even 9-0 reversals indicate that the lower court was lawless. Padilla, I think, was 7-2, and it involved a constitutional protection, yet everyone agrees it was an expansion and thus not a reflection on the lower courts.

And so what if there are Reagan appointees who criticize AEDPA--that doesn't make it any less the law, and no one seriously argues that it is unconstitutional. The issue is that the Dem judges on the Sixth Circuit are blowing it off. You don't dispute that point, nor do directly take issue with the logical conclusion that judges who blow off the law are problematic. Instead, you cast aspersions on the conservative court impliedly accusing it of ignoring similar situations where GOP judges have blown off the law. Well, put up or shut up--where are all those cases?

Then you make the bizarre point about how AEDPA is to be applied--well, the standard is pretty clear. Now there may be some uncertainty in specific cases, but once again, you're not making that argument--you're just throwing out lines. Was White v. Wheeler one of those cases where the lower court was confronted by a lack of clarity in how AEDPA was to be applied? I don't think so.

You also make a startling concession---liberals don't care about judges blowing off the law as long as their ox isn't being gored? Wow. I would think that most people, even if their heart wasn't in it, would concede that judges ignoring the command of Congress is simply unacceptable. But you are saying that they don't think it's a big deal.

And why in the world would I "appreciate" the Gang of Four simply doing its job? If, as you posit, a liberal court wouldn't be taking up these cases, then, it seems to me, that the Gang of Four should be dissenting from the grant and articulating the reasons. And if they would be taking other cases, then they should be dissenting from the denial of cert. far more often.

"Lower courts that will have a different mind-set given their job is different than the Supreme Court that take a few cases a year, not see a bunch of these cases year after year, multiple times with serious problems."

More twaddle. Now we're supposed to believe that Judge Merritt and Judge White (who ain't been on the bench long) have seen so many bad cases that, golly gee, their lawless decision (note, you don't dispute that characterization or offer any legal rationale to defend their decision) is somehow defensible. Of course, you won't come out and say that---but there it is for all to see. It's weak.

Face it Joe, this is a losing proposition. But hey, I will be nice--I am happy to defend Sharon "Killer" Keller. Wanna take me on?

Posted by: federalist | Dec 15, 2015 1:48:06 PM

No written dissent means something different in a per curium opinion than in the denial of certiorari.

A per curium opinion is an opinion of the Supreme Court and is binding precedent. Any justice who joins such an opinion is, at the very least, implicitly agreeing that the opinion is legally correct.

A denial of certiorari is a decision not to decide the case. A denial of certiorari is not precedent and does not adopt the lower court opinion or necessarily signal that the lower court opinion is correct.. As the Supreme Court's rules indicate, there are reasons why the Supreme Court might decline to grant certiorari to review a questionable lower court opinion/

Posted by: tmm | Dec 15, 2015 2:22:18 PM

What the heck is a "'rat" judge?

Posted by: Daniel | Dec 15, 2015 3:50:03 PM

The liberal appointees are waiting until they have the votes to start summarily reversing the denials of relief that are obviously ridiculous. There's not much point in saying anything about those cases now because the other five obviously don't care about them. It could be a very different story in a few years, though.

Posted by: The Death Penalty Sucks. | Dec 15, 2015 7:10:53 PM

Daniel, 'rat judge = federal judge appointed by a Democratic president.

TDPS, that still doesn't address the issue at hand---the 'rat judges who ignore AEDPA. No one has argued that White v. Wheeler is remotely defensible. All we see is speculation that there are all these other decisions that are so bad that should be summarily reversed. But where are all those decisions?

I am sure TDPS that you thought that the "wise [sic] Latina's" opinion in Buck v. Thaler was right on the money. I think the opinion is a joke. Care to debate it?

Posted by: federalist | Dec 15, 2015 9:27:24 PM

In Williams v Taylor scotus was one vote away from rendering 2254d without any real force, using me the constitutional avoidance cannon.

Posted by: Antifederalist | Dec 16, 2015 2:20:45 AM

Robert Jones, Louisiana ................ when will SCOTUS wake up to the horror that unthinking adherence to bad law imposes on real people. Time they climbed down from that ivory tower and started thinking and acting like human beings.

Posted by: peter | Dec 16, 2015 6:32:50 AM

"In Williams v Taylor scotus was one vote away from rendering 2254d without any real force, using me the constitutional avoidance cannon."

Translation, in Williams v. Taylor, SCOTUS was one vote away from nuking a perfectly legitimate exercise of Congressional power. It seems perfectly clear to me that Congress has the power to determine the preclusive effect of a state court criminal judgment in federal court. That doesn't really seem debatable.

Posted by: federalist | Dec 16, 2015 8:45:05 AM

And a 'Can judge is a federal judge appointed by a Republican president.

Posted by: lawyer | Dec 16, 2015 10:12:27 AM

For those interested:


"As the Supreme Court's rules indicate, there are reasons why the Supreme Court might decline to grant certiorari to review a questionable lower court opinion."

These rules don't have crystal clear applications and recent analysis has tried to figure out the often opaque reasoning why certain things are taken for per curiam reviews with the "implicit" reasons of those who join up to some debate.

tmm's bland comments doesn't change any of this.

Posted by: Joe | Dec 17, 2015 7:05:50 PM

Yeah, Joe, we're all interested in hearing that some blogger who speaks for those "fighting for justice" thinks that the habeas rules are sometimes tricky. Of course, that doesn't defend the Sixth Circuit--except in the most roundabout way. The bottom line, and no one here appears to be able to challenge me on this--the 'rat judges on the Sixth Circuit (and I include Helene White as a 'rat judge since she was foisted on Bush 43 by the Dems) got this one wrong--so wrong that they were either (a) ignorant of the relevant law or (b) lawless.

Additionally, no one in here has uttered a peep about whether the substance of Supreme Court's analysis in White v. Wheeler is incorrect. It's not, of course---it restates well-settled law in this area. So it's not like the rug was pulled out from under the Sixth Circuit. And it's not like any vagaries in

Furthermore, all of Joe's lame attempts at deflecting this are just weak. The bottom line---two 'rat judges blew off the law. That should raise alarm bells---if they're willing to blow of the law (and by the way, in the face of a correct dissent) to help out a capital murderer--what other law will they blow off? What other litigants will get unfair treatment?

Instead of dealing with this issue forthrightly, Joe lamely tries to cast aspersions on the "conservative" Court because supposedly there are these other cases (which never seem to be identified) where conservative judges blow off the law. He also tries to suggest that, perhaps, the Court of Appeals judges seeing tons of bad cases make them feel compelled to fix problematic cases. (Of course, Judge White hasn't been on the bench that long.) This is pathetic, and it is an example of how liberals don't care about the rule of law, but only outcomes. Once again (and no one here has disputed this) we have a clear cut example of federal judges using their power to hook up a guilty capital murderer--of all litigants, surely plainly guilty capital murderers are the last people who should have the law twisted in their favor--but yet these 'rat judges did so. And people like Joe are willing to clown themselves to deflect attention from this obvious (and, by any objective measure appalling) breach of the rule of law.

Just so utterly pathetic.

Posted by: federalist | Dec 18, 2015 2:32:41 PM

And it's not like any vagaries in AEDPA caselaw bail out the Sixth Circuit here.

Posted by: federalist | Dec 18, 2015 2:33:38 PM

Looks like I won this one.

Posted by: federalist | Dec 19, 2015 3:26:02 PM

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