Last week, the court granted review in Ricci v. DeStefano.

In 2003, the city of New Haven attempted to promote a number of firefighters to the ranks of captain and lieutenant based on a number of examinations and performance-related indicators. After reviewing the results, the city opted to leave the recently vacated positions unfilled because the individuals recommended by the examinations were almost all white. They refused to promote any of the firefighters in line with “voluntary compliance with Title VII [of the Civil Rights Act of 1964].” The validity and objectivity of the examination methods used to recommend promotion are undisputed.

Frank Ricci and several of the other recommended officers filed suit alleging violation of their rights stated in Title VII and the Equal Protection Clause of the Fourteenth Amendment. The District Court delivered summary judgement in favor of the city, holding that:

[respondents] acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off this list would undermine their goal of diversity in the Fire Department and would fail to de- velop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend.

In the Second Circuit, a three-judge panel voted to uphold the lower court’s decision, finding that “[we] are not unsympathetic to the plaintiffs’ expression of frustration … [but] it simply does not follow that he has a viable Title VII claim.” One of Barack Obama’s oft-mentioned potential Supreme Court nominees, Sonia Sotomayor, sat on the panel and voted for the 3-0 decision.

A few months later, the panel in the Second Circuit suddenly withdrew their opinion and refilled it as a nearly-identical per curiam opinion. A judge on the Court requested, sua sponte, a poll about hearing the case en banc. The only difference between the majority opinion for the panel and the per curiam opinion is the absence of the word ‘substantially’ in the latter from the first sentence of the opinion: “We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.”

The judges voted 7-6 against rehearing en banc and issued an order (here) which included two concurring opinions and one dissenting opinion.

The question before the court is now whether or not the City of New Haven had sufficient justification to reject the results of the exam that would have promoted mostly-white candidates to the positions of lieutenant and captain. The city claims that it used race-neutral analysis (they didn’t want too many candidates of the same race) to formulate their position but the firefighters who filed suit argue that the City’s system was more like a quota (Gratz).

Petitioners also argue that the district court erred in refusing to apply strict scrutiny to the case. The district court held that because no one had been promoted to the positions in question, everyone was treated equally and there was no race-based depravation to trigger the Adarand strict scrutiny requirement.

The results of this case shouldn’t be surprising. Chief Justice Roberts and Justices Scalia, Thomas, and Alito will almost certainly side with the firefighters. Justice Kennedy has almost always ruled against affirmative action in cases before this court and his general position on the equal protection clause is unsympathetic to programs designed to help minorities. Justices Stevens, Souter, Ginsburg, and Breyer will likely side with the City and vote to uphold the City’s ability to enforce it’s own affirmative action policy.

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• Supreme Court Agrees To Hear DC Gun Case (November 20, 2007)
• Northwest Austin and the Forthcoming Ricci Decision (June 24, 2009)

§5 of the Voting Rights Act, now 42 U.S.C 1973(c), forces certain ‘covered jurisdictions’ to have voting procedures pre-cleared by a three-judge panel from the District Court for the District of Columbia, per 28 U.S.C 2284. All appeals are immediately directed towards the Supreme Court and bypass the Court of Appeals.

If localities wish to change their voting procedures or practices, they must

institute an action in the United States District Court for the District of Columbia for a declaratory judgment that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b (f)(2) of this title

However, per §4 of the VRA and 42 U.S.C 1973(b) localities may ‘bail out’ of the program if they have had no infractions of the VRA in the last 10 years.

In the case here, the Northwest Austin Municipal Utility District Number One complied with §5 of the VRA and brought a case under §4 of the VRA in the US District Court for the District of Columbia in order to apply for a bail out. The district argued that they were eligible for the bailout per §4 based on their impeccable record of guaranteeing voter rights. Alternatively, they argue that §5 is unconstitutional when set to the congruence-and-proportionality test set out in City of Boerne v. Flores (1997). They maintain that if a district with a record like this one cannot activate a §4 bail out, §5 effectively binds districts indefinitely.

On May 30, 2008, the district court ruled against the district holding that (1) the district is not an ‘political subdivision’ as defined in the section and therefore is not eligible for §4 relief, (2) the rational-basis test is the appropriate test for concerns under the fifteenth amendment and §5 satisfies said test, and finally (3) §5 also passes the more stringent congruence-and-proportionality test.

The VRA gives the district the opportunity to appeal directly to the Supreme Court and therefore their case not heard by any intermediate appellate court. In one of their briefs to the Supreme Court (here), the district argues that, among other reasons, the election of Barack Obama shows that the United States political arena has changed drastically from the one that existed when the VRA was passed in 1965.

There is no warrant for continuing to presume that jurisdictions first identified four decades ago as needing extraordinary federal oversight through §5 remain uniformly incapable or unwilling to fulfill their obligations to faithfully protect the voting rights of all citizens in those parts of the country.

The brief for the appellant, the district, is due on February 19 and the response from the appellee will be due on March 20. The court will almost certainly hear arguments during the April sitting, which begins on April 20 and lasts until April 29.

Related posts

• Northwest Austin Municipal Utility District and the Future of Section 5 (June 24, 2009)
• Northwest Austin and the Forthcoming Ricci Decision (June 24, 2009)
• Final Argument Transcript of the Term – Northwest Austin v. Holder (April 29, 2009)

Bartlett v. Strickland – Argued on October 14, 2008 (transcript here)- 62 days ago – Bartlett revolves around whether or not a minority group can file suit for vote dilution under certain circumstances.

FCC v. Fox Television Stations Argued on December 4, 2008 (transcript here)- 42 days ago – Fox asks whether or not the use of ‘fleeting expletives’ violates federal regulations against obscene and vulgar language.

Pleasant Grove v. Summum – Argued on December 12, 2008 (transcript here)- 34 days ago -Summum followers asked to place a monument to the ‘Seven Aphorisms‘ be placed near a monument to the Ten Commandments in Pleasant Grove, Utah. See more analysis on the case here.

Ashcroft v. Iqbal – Argued on December 10, 2008 (transcript here)- 5 days ago – Ashcroft asks whether or not a high-level government official can be held liable for supposed mismanagement in crisis.

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• Thoughts on Danforth (February 25, 2008)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)

Opinions are straight 5-4, one majority and two dissent. No concurring, partials. I’m surprised to see that happen. In a term where we’ve seen a remarkably low rate of 5-4 standard ideological splits, this clear delineation resonates loudly enough that I can hear it a thousand miles away.

HELLER OPINION HERE.

Justice Scalia drops a classic lesson in Second Amendment textual interpretation. According to Justice Stevens, he “discusses the prologue last.” Whatever you want to call it, Scalia talks about the right of individual people first.

It is only on Page 56 that he finally gets to DC’s specific legislation. He declares the ‘inoperable’ requirement to be unconstitutional:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Try not to act too surprised, but Stevens talks at length about how the Court’s shouldn’t reverse every decision it makes and that at a certain point, a decision like Miller is set in stone.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law.

Related posts

• Looking Ahead to Watson v. US (August 20, 2007)
• Supreme Introductions (December 20, 2008)
• DC v. Heller Expected Soon (June 26, 2008)

His first splattering:

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

Okay. I’m not totally convince yet, but I get the feeling Justice Kennedy will try again.

Related posts

• Supreme Court Hands Down Key Opinions (June 25, 2008)
• Footnotes in Supreme Court Opinions (December 19, 2008)
• Thoughts on Pleseant Grove v. Summum (April 11, 2008)

The facts of Ressam (opinion) aren’t terribly complex. Ahmed Ressam tried to enter the United States through Canada and lied about his identity and the contents of his vehicle. Custom officials located explosives in his spare tire well and he was convicted in relation to a plot to trigger the explosives at Los Angeles International Airport. He was charged with a number of crimes, one of which was “carry[ing] an explosive during the commision of” another felony (lying to customs officials) under 18 USC 844(h)(2).

The Court held that possession ‘during’ a felony is defined in as anything with a ‘temporal link’ to that felony. Put another way, carrying explosives during a felony, related or not, is grounds to trigger a charge under this statute. The majority opinion, penned by Justice Stevens, refuses to add a relational condition to a statue that says simply, “during.” The Court accepted the case because while the Third and Fifth Circuits have refused to add relational conditions, the Ninth Circuit did in this case and the Court was asked to give final judgment to the sudden circuit split.

Justices Scalia and Thomas joined only the first part of the opinion that states:

There is no need to consult dictionary definitions of the word “during” in order to arrive at the conclusion that respondent engaged in the precise conduct described in §844(h)(2) (1994 ed.). The term “during” denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because respondent’s carrying of the explosives was contemporaneous with his violation of §1001, he carried them “during” that violation.

The Chief Justice and Justices Stevens, Kennedy, Souter, Souter, Ginsburg, and Alito moved on to discuss the history of the statute and how that further clarified the meaning of the clause. In 1984, the Ninth Circuit interpreted a similar firearms statute to have an implicit relational assumption. Congress added the phrase “in relation to” to the statute soon afterwards. As their argument goes, if Congress had intended the explosives-related statues to mirror the breadth of the gun-related statute, they would have included the “in relation to” clause of the latter. Their evidence is persuasive.

Justice Breyer’s dissent is interesting and he makes several strong, but ultimately irrelevant, points. He opens Section I with this:

My problem with the Court’s interpretation is that it would permit conviction of any individual who legally carries explosives at the time that he engages in a totally unrelated felony. “Explosives,” the statute tells us, includes not only obviously explosive material such as “gunpowders” and “dynamite” but also any “chemical compounds” or “mixture[s]” or “device[s]” whose “ignition by fire, by friction, by concussion” or other means “may cause an explosion.” 18 U. S. C. §844(j). And that definition encompasses such commonplace materials as kerosene, gasoline, or certain fertilizers. Moreover, the “carr[ying]” to which the statute refers includes carrying that is otherwise legal. Further, the statute applies to the carrying of explosives during “any” federal felony, a category that ranges from murder to mail fraud. See §1111 (2000 ed. and Supp. V); §1341 (2000 ed., Supp. V).

His concerns are valid. If I were to commit murder with a lighter in my pocket, I could be convicted of carrying an explosive while committing a felony. Ultimately, however, it seems as though Justice Breyer is ruling against this law because there is a better alternative. He spent very little time, if any, explaining why the majorities interpretation was wrong.

Related posts

• Which Justice Will Author The Medellin Opinion? (March 19, 2008)
• Updated Humor Statistics (March 7, 2008)
• Unity Defined (June 11, 2007)

A park in Pleasant Grove, Utah features a number of monuments commemorating important events in the cities history, the most important of which is one of the Ten Commandments that was dedicated to them by the Fraternal Order of Eagles in 1971. In 2003, the local chapter of the Summum religious order wrote a letter to the mayor requesting that their own monument be erected to honor the Seven Aphorisms. The mayor wrote back rejecting their proposal claiming that all displays in this park must a) “directly relate to the history of Pleasant Grove” or b) be “donated by groups with long-standing ties to the Pleasant Grove community.” Thecity put the mayor’s ideas into law a year later and when the Summum’s new request was ignored, they filed suit claiming injunctive relief and monetary damages.
The district court denied them injunctive relief and they appealed to the Tenth Circuit.

A three-judge panel concluded that the monument’s position in the park was an instance of private speech taking part in a ‘traditional public forum.’ The majorities focus on ‘forum analysis’ came as a shock to many who had expected the Court to consider the monument an instance of government speech to be regulated according to the establishment clause. When the majority called upon ‘forum analysis,’ they triggered the set of criterion that accompany a suppression of a particular form of speech and the strict scruitiny that follows.

The panel first concluded that parks are traditional public forums and as such, “the city cannot close or otherwise limit a traditional public forum by fiat.” The court then sought to find whether or not the city’s policy would hold up against strict scrutiny’s requirements that the law fulfill a ‘compelling interest’ and that it be ‘narrowly tailored.’ The city had not prepared a formal compelling interest claim because it had argued that the forum was nonpublic but the Court assumed that the city’s only argument would be the promotion of the city’s history.

Judge Lucero wrote an opinion dissenting from the Court’s decision not to hear the decision en banc. In his dissent, he argues that parks are not traditional public forums, but may or may not be designated public or nonpublic forums.

Judge McConnell wrote the more interesting of the two dissents in favor of rehearing. He argues that the Ten Commandments monument is a form of government speech and bases his decision in Van Orden (Supreme Court) and Wells v. City and County of Denver (Tenth Circuit.)

The cities were under no obligation to accept the statues, and could have objected to their content. When they accepted donation of the monuments and displayed them on public land, the
cities embraced the messages as their own. Similarly, Duchesne and Pleasant Grovecontrolled the placement of the statues, just as in Wells Denver bore ultimate responsibility for the content of the display.

If the Ten Commandments monument is deemed to be government speech, it becomes subject to a drastically different test than if it had been an instance of private speech in a particular forum.

In a rather surprising turn of events, Judge Tacha filed a response to the two opinions in favor of rehearing. I’m not sure of any other instance on a circuit court in which a judge, no less the Chief Judge, has filed a ‘response’ to a failed rehearing vote. In his response, he answers Judge McConnell’s government speech question:

To make government ownership of the physical vehicle for the speech a threshold question would turn essentially all government-funded speech into government speech. But this would be an absurd result. No one thinks The Great Gatsby is government speech just because a public school provides its students with the text. This is because the speech conveyed by the physical text remains private speech regardless of government ownership.

Briefs by the parties involved and amicus briefs will be filed throughout the summer and the Court is expected to hear the case in November or December.

Related posts

• Initial Thoughts on Ricci v. DeStefano (January 19, 2009)
• Initial Thoughts on Northwest Austin v. Mukasey (January 10, 2009)
• Initial Thoughts on Kennedy v. Louisiana (June 25, 2008)

The focus on the ICJ’s decision isn’t surprising given the performance of the Justices and attorney’s during oral argument last October. The traditionally liberal-minded Justices scoffed at the idea of a Presidential Memorandum holding any real weight and even the traditionally conservative Justices were incredulous at best. The discussion kept going back to whether or not Congress could enter a treaty that is later redefined by an ICJ opinion and that lean is reflected in the opinions. The court did have this to say about the President’s authority regarding self-executing treaties:

Once a treaty is ratified without provisions clearly according it domestic effect, however, whether the treaty will ever have such effect is governed by the fundamental constitutional principle that “‘[t]he power to make the necessary laws is in Congress; the power to execute in the President.’”… As already noted, the
terms of a non-self-executing treaty can become domestic law only in the same way as any other law—through passage of legislation by both Houses of Congress, combined with either the President’s signature or a congressional override of a Presidential veto.

The majority opinion written by the Chief Justices covers a lot of ground in only 35 slip opinion pages. The Chief includes this gem in the middle:

The dissent’s approach risks the United States’ involvement in international agreements. It is hard to believe that the United States would enter into treaties that are sometimes enforceable and sometimes not. Such a treaty would be the equivalent of writing a blank check to the judiciary. Senators could never be quite sure what the treaties on which they were voting meant. Only a judge could say for sure and only at some future date. This uncertainty could hobble the United States’ efforts to negotiate and sign international agreements.

Roberts rejects the treaty for more reasons than that, but my feeling from past opinions written by the Chief is that he is particularly fond of assides that add nothing but biting dicta. For example, he declared that “(We already know, from Sanchez-Llamas, that this Court disagrees with both the reasoning and result in Avena.)” An aside of that variety is Marbury-esque in the sense that the Chief is saying nothing more than “the law says this, but we are also super-excited that we have come to this conclusion.” The Chief’s obiter dictum warmly invite accusations of power-mongering and self-interested interpretation of the already hazy facts of the case.

Related posts

• Thoughts on Danforth (February 25, 2008)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)
• Who Is The Funniest Justice? (November 10, 2007)

Danforth first made news (within the overly excited blogosphere) when the Justices turn an ordinary mundane session of Oral Arguments into a circus.

There are two prior cases that are relevant precedent in Danforth. The first case revolves around a ‘new rule’ that the Court ‘created’ in Crawford v. Washington (2005) related to the permissibility of certain types of testimonial statements in criminal cases. The Court in Crawford ruled that the Confrontation Clause necessitates confrontation for all testimonial evidence. Prior to Crawford, police-conducted testimony was not bound by the Confrontation Clause and defendants were not always granted the right to cross-examination.

The second relevant case in Danforth is Teague v. Lane (1989). Teague, however, invoked a few cases of its own. The Court held in Linkletter v. Walker (1965) that “the exclusionary rule announced in Mapp (v. Ohio) does not apply to state court convictions which had become final before its rendition.”

Swain v. Alabama (1965) held that in order to prove prima facie Fourteenth Amendment discrimination in the jury selection process based on racially-motivated use of preemptory challenges, defendants must show past instances of racially-motivated use (ie. prosecutor’s history of all-white juries.) In Batson v. Kentucky (1986), the court struck down the evidentiary rule from Swain and instead required only “an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race.” A per curiam opinion in Allen v. Hardy (1986) held that Baston should not be applied retroactively because a “decision announcing a new constitutional rule of criminal procedure is almost automatically nonretroactive where the decision explicitly overrules past precedent” and the Baston rule “does not have such a fundamental impact on the integrity of factfinding as to compel retroactive application.”

That is where Teague enters into the fray. The Court drew heavily from Linkletter v. Walker (1965) where it held that “the exclusionary rule announced in Mapp (v. Ohio) does not apply to state court convictions which had become final before its rendition.” The Court first defined a ‘new rule’ as a standard that “breaks new ground or imposes a new obligation on the States or the Federal Government” or “if the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Justice Stevens opens his opinion in Danforth by summarizing the Teague Rule:

New constitutional rules announced by this Court that place certain kinds of primary individual conduct beyond the power of the States to proscribe, as well as “water- shed” rules of criminal procedure, must be applied in all future trials, all cases pending on direct review, and all federal habeas corpus proceedings. All other new rules of criminal procedure must be applied in future trials and in cases pending on direct review, but may not provide the basis for a federal collateral attack on a state-court conviction.

Back to Danforth- Petitioner Stephen Danforth was arrested in 1994 for first-degree criminal sexual conduct with a minor. The minor did not testify in court but the jury was permitted to see a videotaped interview with him. Danforth was convicted and his case was finalized (all appeal was exhausted and statutes of limitations expired) in 1998.

In 2004, the Court decided Crawford which applied the confrontation clause to testimonial statements. Danforth applied for state postconviction relief and the State Supreme Court ruled that (1) Crawford was not relevant precedent under Teague and that (2) State Courts could not apply retroactivity standards broader than were necessitated by federal law.

By a vote of 7-2, the Supreme Court concluded that the Minnesota State Supreme Court was permitted to extend the scope of retroactivity, but not required to do so. Simply put:

Neither Linkletter nor Teague explicitly or implicitly constrained the authority of the States to provide remedies for a broader range of constitutional violations than are redressable on federal habeas.

The Court’s opinion seemed like a fairly logical conclusion to a rather simple question- Can states offer individuals more protection than the Federal Government requires? It seems so obvious that I went to the Minnesota Supreme Court’s opinion to find a reason why that logic wouldn’t hold. Check out the opinion here.

Danforth is incorrect when he asserts that state courts are free to give a Supreme Court decision of federal constitutional criminal procedure broader retroactive application than that given by the Supreme Court. In American Trucking Associations, the plurality rested its retroactivity analysis in part on Michigan v. Payne, 412 U.S. 47 (1973). Am. Trucking Ass’ns, Inc., 496 U.S. at 178. In Payne, the Court reversed the decision of the Michigan Supreme Court, which had applied North Carolina v. Pearce, 395 U.S. 711 (1969), retroactively to Payne’s case, and held that Pearce would not apply to errors occurring before Pearce was decided. Payne, 412 U.S. 49, 57.

Interesting. Lets take a look at Michigan v. Payne (1973).

Since the resentencing hearing in this case took place approximately two years before Pearce was decided, we hold that the Michigan Supreme Court erred in applying its proscriptions here.

Justice Stevens addressed the issue in Danforth and argued that “not a word in our Payne opinion suggests that the Court intended to prohibit state courts from applying new constitutional standards in a broader range of cases than we require.” I disagree. It sounds like the Payne opinion has language that very clearly limits the ability of states to deviate from federal decisions. Check out the other case, American Trucking Associations v. Smith (1990), here.

One phrase in particular caught my attention- “In order to ensure the uniform application of decisions construing constitutional requirements and to prevent States from denying or curtailing federally protected rights, we have consistently required that state courts adhere to our retroactivity decisions.” It sounds to me like the American Trucking Court had definitely concerned itself with short-selling the American people and was not worried about granting anyone too much protection.

The Chief Justice argues in his dissenting opinion (joined by Justice Kennedy) that “the majority’s decision is grounded on the erroneous view that retroactivity is a remedial question.” In other words, he argues that retroactivity is not based on the idea that we owe individuals some basic remedy and states may add on to that with their own remedies. Instead, retroactivity is a question of “whether ‘new’ or ‘old’ law applies to a particular category of cases.” I could never do justice (pun totally intended) to Chief Justice Roberts’ dissenting opinion so I will let it speak for itself:

The majority explains that when we announce a new rule of law, we are not “creating the law,” but rather “declaring what the law already is.”. But this has nothing to do with the question before us. The point may lead to the conclusion that nonretroactivity of our decisions is improper—the position the Court has adopted in both criminal and civil cases on direct review—but everyone agrees that full retroactivity is not required on collateral review. It necessarily follows that we must choose whether “new” or “old” law applies to a particular category of cases. Suppose, for example, that a defendant, whose conviction became final before we announced our decision in Crawford v. Washington argues (correctly) on collateral review that he was convicted in violation of both Crawford and Ohio v. Roberts, the case that Crawford overruled. Under our decision in Whorton v. Bockting (2007), the “new” rule announced in Crawford would not apply retroactively to the defendant. But I take it to be uncontroversial that the defendant would nevertheless get the benefit of the “old” rule of Roberts, even under the view that the rule not only is but always has been an incorrect reading of the Constitution. Thus, the question whether a particular federal rule will apply retroactively is, in a very real way, a choice between new and old law. The issue in this case is who should decide. [Citations omitted]

Later:

Nor is there anything in today’s decision suggesting that States could not adopt more nuanced approaches to retroactivity. For example, suppose we hold that the Sixth Amendment right to be represented by particular counsel of choice, recently announced in United States v. Gonzalez-Lopez, 548 U. S. 140 (2006) , is a new rule that does not apply retroactively. Under the majority’s rationale, a state court could decide that it nonetheless will apply Gonzalez-Lopez retroactively, but only if the defendant could prove prejudice, or some other criterion we had rejected as irrelevant in defining the substantive right. Under the majority’s logic, that would not be a misapplication of our decision in Gonzalez-Lopez—which specifically rejected any required showing of prejudice, id., at 147–148—but simply a state decision on the scope of available remedies in state court. The possible permutations—from State to State, and federal right to federal right—are endless.

Related posts

• Unity Defined (June 11, 2007)
• Thoughts on Boumediene Oral Arguments (December 5, 2007)
• Supreme Introductions (December 20, 2008)

The arguments went almost exactly as expected. The obvious things first- Justice Scalia gave Seth Waxman, attorney for the detainees, a hard time. Justice Scalia repeatedly grilled Waxman on his position, arguing that there is no precedence, either in United States or English common law, that habeus corpus should be extended to non-citizens outside sovereign territory. This led Waxman to suggest (albeit indirectly) that Justice Scalia’s concerns may not reflect those of his eight colleagues.

Justices Souter and Breyer attacked Solicitor General Clements in the same way that Justice Scalia attacked Waxman, the only difference being that Souter was marginally less forceful. There was a substantial amount of discussion over whether Guantanamo Bay fell under the legal jurisdiction of the United States or Cuba. Justice Kennedy, who will likely be the swing vote, only asked a few questions, and it was difficult to read his opinion on the matter.

Chief Justice Roberts and Justice Alito both asked a few questions and appeared to be generally engaged.

I got the impression from the Justices that the most fundamental outcome of this case was a foregone conclusion. A majority of the Justices have clearly indicated that they believe detainees in Guantanamo Bay are subject to some form of habeus protection. The question now is whether or not the DC Court of Appeals is the proper location for that habeus filing, whether or not other issues can be brought up by detainees, and how the DC court should handle the cases if and when they are filed.

It seems rather inevitable that the Court here will not agree with the DC Court. Only the most conservative Justices (perhaps Justice Scalia alone) believe that detainees held at Guantanamo Bay should not be granted any habeus rights.

You can stream the oral arguments for yourself here (RealPlayer required.)

Related posts

• BONG HITS 4 JESUS (May 6, 2007)
• Unity Defined (June 11, 2007)
• Supreme Introductions (December 20, 2008)