The Supreme Court handed down two death penalty decisions today, giving victories to the defendants in both cases. In the first case, Hill v. McDonough, the Court ruled unanimously (in an opinion by Justice Kennedy) that method-of-execution claims can be brought under Section 1983 rather than under the habeas statutes. For what this means, see my earlier post on Hill.
I am surprised that this opinion was unanimous, but the calendar may explain it: Hill was argued at the end of argument season, and by the time this opinion circulated the time for filing dissents was running out. I suspect that this opinion would have drawn some dissents if it had been filed earlier in the year. In any event, I assume the effect of Hill will be to push the courts on to the merits of method-of-execution claims sooner rather than later.
The second case handed down was a 5-3 case, House v. Bell, with Kennedy joined by Breyer, Stevens, Souter, and Ginsburg for the majority. (Alito did not participate.) To simplify a somewhat complicated case, House involves an application of the “miscarriage-of-justice” exception to procedural default of state claims in federal court under Schlup v. Delo. Basically, some new evidence came to light following House’s conviction suggesting that he may be innocent; the question is, was there enough evidence allowing him to pursue his claim in federal court even though he did not raise the claim in state court?
In an unusually long and fact-intensive opinion — 36 pages altogether, one of Kennedy’s longest — Justice Kennedy concludes yes, there was enough evidence to sufficiently challenge the reliabillity of the verdict, and the federal court can step in. Chief Justice Roberts disagrees in an 18-page opinion joined by Thomas and Scalia. According to Roberts, proper deference to the factfinder means that there is insufficient evidence to challenge the reliability of the verdict.
I suspect that this opinion would have drawn some dissents if it had been filed earlier in the year. Intriguing speculation. Couldn’t a justice who disagrees but doesn’t have time to write a dissenting opinion just dissent without an opinion? It’s true, I can’t think of any USSC dissents in recent times where no dissenting judge filed an opinion; but I think this happens on state courts, at least. It seems odd that justices opposed to the outcome would not register that opposition somehow just because of time pressure.
Two thoughts.
You describe House v. Bell as a victory for the defendant. I’m not sure that’s right. In Part V of its opinion, the Court rejects House’s claim that his new evidence is persuasive enough to merit actual habeas relief under a freestanding innocence claim. Almost half of the Sixth Circuit bought this claim and would have ordered House’s immediate release. Now, House must prove up his ineffective assistance claim. In light of the AEDPA standards of review, the chances seem slim that House will ever be released.
Second, is House v. Bell a “dud”? In the final analysis, it looks to be an inconsequential case. In Part IV, the Court applies well-established law to new facts. In Part V, the Court declines to clarify at all its position on the Herrera issue: whether a freestanding innocence claim exists. My first read suggests that House v. Bell breaks no new ground.
Supreme Court Justices are human too.
For a judge to dissent in a case, if often takes a fair amount of research for the judge to become comfortable that he’s right and that the majority is wrong. If the judge does not have time to do the amount of research necessary to satisfy himself that a dissent is necessary, he has a few options: (1) speak to the authoring judge about whatever discomfort he feels with the result, (2) write a quick and dirty dissent and risk being embarrassed by making a misstep, (3) dissent without opinion, or (4) join the majority.
If a Justice goes with option (1) and ultimately joins, we’ll never know.
A Justice may feel that if he dissents, he has a responsibility to provide an explanation, which would make (3) less attractive.
(2) is unattractive for obvious reasons.
So, if doing lots of research simply isn’t an option and the opinion isn’t sufficiently earth-shattering, (4) is likely to happen some of the time. Ideally, the timing of a case shouldn’t affect the thoroughness of the Justices’ work on it, but it’s a fact of life sometimes.
Josh Lee said:
“You describe House v. Bell as a victory for the defendant. I’m not sure that’s right…Second, is House v. Bell a “dud”? In the final analysis, it looks to be an inconsequential case.”
I would say this was a definite victory for the defendant. It may be inconsequential in terms of defining new maxims. However, it seems to me that if one on death row is allowed to live another day, a major victory has occured. So the court allowing determining he is entitled to a hearing is a definite victory for him.
Obviously, for the first point, he must prove that the new evidence is sufficient; however, this seems musch more of a victory than having the court find that he is not entitled to such a hearing. I’m not sure the evidence is sufficient; however, if the evidence is as strong as the defense believes it is– then it is definitly a victory.
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“definite victory for the defendant”
I would agree … it just is a narrow one, but this is an ongoing theme for the SC the last few years. Roberts seems to desire to follow the theme.