Harmonious SCOTUS? Criminal Cases Less So Than Civil

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By Jordan S. Rubin

More than half of the Supreme Court’s decisions in argued cases were unanimous this past term. That’s just the second time that has happened since 1969.

But that’s no thanks to the 2016-17 term’s criminal docket, where the justices were less acquiescent. This is despite the fact that many of the criminal opinions “were decided on narrow grounds,” as professor Stephen E. Henderson of the University of Oklahoma College of Law in Norman, Okla., told Bloomberg BNA.

“The fair amount of disagreement among the justices in criminal cases this term was interesting,” Adam Feldman told Bloomberg BNA. Feldman runs Empirical SCOTUS, which analyzes Supreme Court data.

And the term marked the arrival of Justice Neil M. Gorsuch, who “immediately settled into his Scalia-esque role,” Henderson said.

With Gorsuch’s debut at the end of the term—in the wake of Reagan-appointee Antonin Scalia’s death last year—Republican-appointed justices are back in the majority.

Stats: Crime More Contentious?

In the court’s 24 argued criminal justice cases, more than half—13—yielded dissents.

Decision Trends

The dissent rate in criminal cases—about 54 percent—was basically flipped when it came to the remainder of the term’s cases, which yielded dissent just under 45 percent of the time.

Death Penalty: Bulldozers, Unseemly Maneuvers

True to form, perennial hot-button issue capital punishment brought some of the term’s most contentious opinions. Death penalty cases accounted for two of the term’s three 5-4 decisions ( Davila v. Davis, McWilliams v. Dunn).

In Davila, Justice Clarence Thomas’s majority opinion “narrowed the situations in which ineffective assistance of appellate counsel can excuse defaults of serious constitutional claims,” professor Brandon Garrett of the University of Virginia School of Law in Charlottesville, Va., told Bloomberg BNA.

The opinion was “sharply divided,” according to a post by professor Stephen I. Vladeck of the University of Texas at Austin School of Law on SCOTUSblog’s online death penalty symposium.

Davila held that if a state prisoner fails to challenge his lawyer’s effectiveness in a state post-conviction proceeding, then he can’t do so in a federal habeas petition, even if the ineffectiveness of the state post-conviction lawyer caused the failure.

Thomas was joined by fellow Republican-appointees Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Samuel A. Alito Jr., and Gorsuch.

Justice Stephen G. Breyer’s dissent for the four Democrat-appointed justices in Davila was “especially pointed,” Vladeck said in his symposium post.

The majority inconsistently applied the court’s precedents in denying the inmate the opportunity to press his claim, Breyer said in dissent.

“What is sauce for the goose is sauce for the gander,” he said.

But Breyer got to dish out the sauce in the other 5-4 criminal case involving a death row inmate.

In McWilliams, Breyer wrote the majority opinion, joined by Justices Ruth Bader Ginsburg, Kennedy, Elena Kagan, and Sonia Sotomayor. The inmate in that case was entitled to a mental health expert independent from the prosecution, Breyer said.

Alito wrote the dissent. It accused the majority of an “unseemly maneuver": deciding a different question than the one the court agreed to answer when it took the case.

And Roberts wrote for a divided court in Buck v. Davis. In Buck, “a defense expert told the jury that black people are more likely to engage in criminal acts in the future,” professor Garrett said. Buck is black.

That “Buck may have been sentenced to death in part because of his race” is a “disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are,” Roberts wrote for the 6-2 majority.

Buck was a narrow “progressive win,” Brianne Gorod said in a post for the SCOTUSblog death penalty symposium. Gorod is chief counsel for the Constitutional Accountability Center, which is “dedicated to fulfilling the progressive promise of our Constitution’s text and history.” The group filed an amicus brief supporting Buck.

But not everyone saw the case as a win.

The majority opinion is “backwards,” Thomas said in dissent, joined by Alito. It “bulldozes procedural obstacles and misapplies settled law to justify” its “desired outcome,” he said.

Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, agreed.

“Hard cases make bad law, and the Supreme Court may find itself correcting a lot of erroneous decisions citing Buck in the years to come,” Scheidegger said in a post for the SCOTUSblog symposium.

More Death Cases? Not Hearing It

The court’s refusal to take up several capital punishment claims also prompted dissent, particularly from Breyer and Sotomayor, both of whom are critical of the death penalty.

In Elmore v. Holbrook, for example, the court declined to hear a petition from a death row inmate alleging his attorney failed to present mitigation evidence at sentencing.

Sotomayor wrote a 15-page dissent, joined by Ginsburg. “Many observers, on and off this Court, have questioned the reliability and fairness of the imposition of capital punishment in America,” she said.

Breyer, for his part, dissented on multiple occasions where he thought the court should have heard death row inmates’ claims.

“The time has come for this Court to reconsider the constitutionality of the death penalty,” he said in one of his dissents.

Race on Trial

Like in Buck, racial bias took center stage in Pena-Rodriguez v. Colorado.

After Pena-Rodriguez was convicted of sex offenses, several jurors reported that one of their colleagues was openly biased toward Mexican men, which led the juror believe the defendant, a Mexican man, was guilty.

But unlike in Buck, where Roberts wrote the majority opinion remedying racial bias, he didn’t join the majority in Pena-Rodriguez that ruled for the Mexican man.

A juror’s reliance on race to convict a criminal defendant violates the Sixth Amendment, and courts can consider evidence of this animus even though it requires examining otherwise secret jury deliberations, Kennedy said for the 5-3 majority.

Alito dissented, joined by Thomas and Roberts.

The court’s “prying open” of jury deliberations is a “startling development,” Alito said.

Pena-Rodriguez could spur widespread litigation scrutinizing jury deliberations, although “this might be—and probably will be—a very rare exception for racially biased deliberations,” professor Henderson said.

‘Musings’ on Facebook

Packingham v. North Carolina dealt with the First Amendment rights of sex offenders to use social media.

Kennedy’s opinion in favor of Packingham produced no dissent, but it was an example of a case where “surface unanimity masks much more turbulent waters underneath,” ACLU attorney Lee Rowland said at the American Constitution Society’s 2016-17 Supreme Court review (at 5:14).

Rowland pointed to Alito’s concurring opinion, joined by Thomas and Roberts.

Alito said he couldn’t fully join Kennedy’s opinion because of its “musings,” “unnecessary rhetoric,” and “undisciplined dicta.”

And though it was grounded in the First Amendment, Packingham may have implications in the criminal realm.

It was “very much a First Amendment decision, and a resounding recognition of the importance of cyberspace in that domain” Henderson said. But “the opinion’s language gives me hope that the Court will take careful notice of criminal procedure litigation heading its way, including challenges to laws imposing lifetime GPS monitoring on those who have already served their lawfully-imposed sentences,” he said.

Tort, Retort

Civil cases with underlying criminal issues further illustrated divides among some of the justices, where Alito and Thomas often went one way and Sotomayor went another. In one case, Sotomayor said the court favored the claims of cops over the claims of people shot by cops.

Ricardo Salazar-Limon was shot by a Houston police officer. He sued. The lower court granted summary judgment for the cop.

The Supreme Court declined to take up the civil rights case. Alito wrote a concurrence, joined by Thomas, to explain his thinking as to why the court was wise to do so.

“Regardless of whether the petitioner is an officer or an alleged victim of police misconduct, we rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case,” Alito said.

Sotomayor thought the court’s refusal to hear the plaintiff’s claim highlighted a “disturbing trend.”

If the plaintiff had been a cop, rather than someone shot by a cop, the high court may have acted differently, Sotomayor said in dissent, joined by Ginsburg.

“We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force,” Sotomayor said.

“We rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases,” she said.

No Dissent = Easily Resolved?

The justices all agreed, at least on the result, in 11 of their criminal justice opinions in argued cases.

Vote Split Frequency

They made quick work of three white collar cases, in particular.

“In the white collar area, in rulings like Salman v. United States on insider trading law, the Court rejected overly technical or narrow interpretations of the statutes,” professor Garrett said.

Writing for the unanimous court in Salman, Alito said the case is “easily resolved.”

Yet, like Packingham, some of these dissent-less opinions didn’t garner unanimous thinking.

Writing for a unanimous court in Beckles v. United States, Justice Thomas said the federal sentencing guidelines aren’t subject to vagueness challenges under the due process clause. Sotomayor concurred only in the judgment in Beckles, because, she said, “the majority reaches far beyond what is necessary to resolve this case.”

The majority holding is “not only unnecessary, but also deeply unsound,” Sotomayor said.

Similarly, though it was a 9-0 opinion, Maslenjak v. United States evoked a less-than-unanimous spirit. In Maslenjak, Kagan wrote for the court to say that a citizen can’t be stripped of her citizenship based on a lie made during the naturalization process, unless the lie was “material” to obtaining citizenship in the first place.

But the newest member of the court said Kagan’s opinion decided more than it had to.

Gorsuch concurred in the Maslenjak judgment “stridently and eloquently,” professor Henderson said. The new justice “counseled” his more experienced colleagues that the Supreme Court “often speaks most wisely when it speaks last,” Henderson said, referring to Gorsuch’s lament that Kagan’s opinion unnecessarily announced new tests for lower courts to apply.

Kagan briefly addressed Gorsuch’s complaint in a footnote in her majority opinion. Ruling the way Gorsuch recommended would be a “halfway-decision” that “would fail to fulfill our responsibility to both parties and court,” Kagan said. “The Government needs to know what prosecutions to bring; defendants need to know what defenses to offer; and district courts need to know how to instruct juries,” she said.

Looking Ahead

Given the term’s lack of traditional blockbusters, court watchers like Henderson “are eagerly anticipating the next term, in which the Court might decide the future direction of the Fourth Amendment in Carpenter v. United States,” he said.

The court granted review in Carpenter June 5 to decide whether the government can get historical cell site location information without a warrant.

Carpenter could be the biggest Fourth Amendment case since Riley v. California, professor Ric Simmons of The Ohio State University Moritz College of Law told Bloomberg BNA. In 2014, the Supreme Court said in Riley that warrants are needed to search mobile phones of arrestees. The high court usually takes a big search and seizure case every few years or so, and Carpenter is poised to be the next big one, Simmons said.

And looking ahead to how the newest justice will vote in the term and years to come, Feldman said, “Based on his writing this term, we will probably see Gorsuch author criminal decisions that hinge on statutory text in the near future.”

One of Gorsuch’s statutory opinions was Maslenjak, the case where he lectured his senior colleagues that the court “often speaks most wisely when it speaks last.”

“On the closely divided Court,” Gorsuch “is likely to be that last voice in important cases to come,” Henderson said.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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