New StatPack, Plus More on Monday’s Orders
A new edition of this Term’s StatPack is here. Note that we have not included a case list in this download, but the SCOTUSwiki case indices have been updated to reflect the latest opinions and grants; OT07 is here, and OT08 is here.
One additional item of curiosity this week: on Monday, the Court granted cert. in Pearson v. Callahan, which included the following directive: “In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: ‘Whether the Court’s decision in Saucier v. Katz, 533 U. S. 194 (2001) should be overruled?’” One reader emailed us to ask an interesting question: when was the last time the Court sua sponte (i.e. on its own) ordered the parties to address specifically whether it should overrule one of its precedents?
Based on our searches of various databases, the last time this happened (and the only time in recent history) was 1991 in a case called Payne v. Tennessee. In an order reported at 498 U.S. 1080, the Court amended its grant of a few days earlier to add a question about overruling two of its then-recent capital case precedents, Booth v. Maryland and South Carolina v. Gathers. In its ultimate opinion, the Court did indeed overrule those two 5-4 decisions by a vote of 6-3, leading Justice Marshall to write a dissent noting that “Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.”
The Court also added questions on its own about overruling precedents in both Patterson v. McLean Credit Union from 1988 and Garcia v. San Antonia Metropolitan Transit Authority from 1985. In those cases, though, it granted cert., held oral argument, and then asked the parties to reargue the cases addressing whether parts of earlier decisions should be overruled. Ultimately, Patterson did not overrule the precedent at issue, Runyon v. McCrary (1976), but Garcia did indeed overrule the National League of Cities v. Usery (1976) decision.
Procedurally, even those most in the know about the Court’s procedure are somewhat unclear about the formal process for adding such a question sua sponte. The order requesting reargument and rebriefing in Patterson led to two dissents from the Court’s more liberal wing - one written by Justice Blackmun, joined by justices Brennan, Marshall, and Stevens, and the other written by Justice Stevens, also joined by Justices Brennan, Marshall, and Blackmun - so that action likely was formally voted on, and likely took five votes. But when the Court adds a question before argument, as it did on Monday, it’s not clear whether it takes four votes, five votes, or whether it’s done more informally at the request of one or more justices and then mutually agreed upon.
“In its ultimate opinion, the Court did indeed overrule those two 5-4 decisions by a vote of 6-3, leading Justice Marshall to write a dissent noting that ‘Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.’”
Justice Marshall’s fulminations about precedent in Payne, in the context of his own obstinacy on Gregg, ranks it among the most hypocritical opinions in the history of the Court.
Comment by Kent Scheidegger — March 26, 2008 @ 5:49 pm
Kent,
Only if you insist that justices who participated in cases are just as bound by stare decisis to except their outcomes as justices who come later. There is nothing hypocritical in allowing a justice who dissented in a case to maintain his views, while insisting that justices who come later (such as Justice Kennedy) accept the rulings of previous decisions.
Comment by Jacob Berlove — March 26, 2008 @ 6:13 pm
Scalia’s concurrence highlights some of the problems with blind adherence to stare decisis:
“Today, however, Justice Marshall demands of us some ’special justification’ — beyond the mere conviction that the rule of Booth significantly harms our criminal justice system and is egregiously wrong — before we can be absolved of exercising ‘[p]ower, not reason,’ post, at — (slip op., at 1). I do not think that is fair. In fact, quite to the contrary, what would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted five votes.”
Ouch.
Comment by Sean O'Brien — March 26, 2008 @ 6:16 pm
I think Saucier v. Katz is as good as dead. If I remember correctly, Justices Stevens, Ginsburg, Breyer, and Scalia are all on record as urging that it be overruled, and there can be little doubt that the Chief Justice’s emphasis in his speeches on not deciding more than what’s necessary to decide a case will lead to support overruling as well. The Chief already voted to explicitly overrule Dr. Miles, and I have no doubt that a precedent that by its own terms calls for judges to do mor ethan necessary to decide a given case is also proper to overrule according to his philosophy.
That said, I personally think it’s crucial that the decision be maintained in order to prevent a state of affairs where police (i.e.their insurance companies) have perpetual immunity for commiting unconstitutional acts never given a chance to be ruled unconstitutional. Judicial minimalism is no plus if it allows blatantly unconstitutional acts to go without remedy so long as there isn’t enough relevant precedent. And what of Justice Scalia’s marvelous idea in Hudson about civil remedies for knock and announce violations? As the facts will necessarily change form case to case, kock and announce requirements will be proved to be a legal fiction whose benefits will be contigent at the grace of your local police department, just as many people thought all along.
Comment by Jacob Berlove — March 26, 2008 @ 6:24 pm
In comment #2, “to except their outcomes” should be to “accept their outcomes”.
Comment by Jacob Berlove — March 26, 2008 @ 6:25 pm
At the risk of amusing (or annoying) a lot of commenters or browsers smarter than I am, I recall that neither party in Erie R.R. Co. v. Tompkins called upon the Court to overrule Swift v. Tyson.
Comment by Michael Simpson — March 26, 2008 @ 6:36 pm
Looking quickly at the StatPack, it would appear to me clear that Justice Alito is writing the court’s opinion in Santos. He and Justice Breyer are the only justices not to have delivered an opinion in the October term, and Justice Breyer already has an opinion from both the November and December sittings, while Justice Alito has only managed to deliver a single opinion from the December sitting.
If Justice Alito was assigned Santos as I’m speculating, that probably means a victory for the government. The only likely scenario in which Alito voted for the defendant and was assigned the opinion is if the court’s decision was unanimous or near unanimous, in which case the decision probably would have delivered already. Although there could have been a vote change and the like, the most likely result will be a sharply divided pro-government outcome.
Comment by Jacob Berlove — March 26, 2008 @ 6:41 pm
Even more interesting:
Justices Scalia and Alito are the onlt justices not to have written in the November sitting, which means that almost certainly one of them was assigned to write U.S. v. Williams, the pornography promotion case. It is highly unlikely that either one of them voted to strike down the act, so there is little doubt now that the act will be upheld.
Comment by Jacob Berlove — March 26, 2008 @ 6:47 pm
“Only if you insist that justices who participated in cases are just as bound by stare decisis to except their outcomes as justices who come later.”
Yes, I do insist that. I can conceive of no legitimate justification for a differential between participating justices and those appointed later. Precedent is precedent, and the criteria for overruling should not depend on the identity of the judges in a government of laws and not of men and women.
Comment by Kent Scheidegger — March 26, 2008 @ 6:57 pm
Actually, it is a good question what a justice is supposed to do when s/he tries to convince his/her fellow justices of a position but fails to do so. When related issues appear before the Court, should the justice hold to his/her position while the Court moves on without him/her, address the issue at hand while maintaining their philosophical opposition, or accept the majority decision and live within it.
The collective opinion of the justices, as expressed in their decisions about recusal, is that it is important for reasons of finality and clarity in the law that a justice put aside his/her reservations and participate in a case (although I don’t take all these assertions at face value, nobody denies the power that justices exercise and its corruptive nature). On the other hand, legal historians tend to value a justice who has a jurisprudence of his/her own which he/she maintains despite the degree to which it expresses or contradicts prevailing law.
One interesting example relates to abusive litigants. When the Court first considered prohibiting a named litigant from filing in forma pauperis, Justice Stevens dissented. The Court continued to employ the practice and Justice Stevens continued to dissent and these orders and dissents were done as per curiams. Then one of the Justices, I believe White, wrote that Stevens’ continued pursuit of this position served no useful purpose. Eventually, the Court worked out the current formulation, in which there is a one-sentence order noting Justice Stevens’ dissent citing his best explanation.
The one-sentence “Justices Brennan and Marshall dissent, believing that the death penalty is unconstitutional in all cases” is well known. In some cases, justices expressly say that the decision is so wrong they will not accept it. This was the case in the National League of Cities/San Antonio Rapid Transit duo. We saw it again in the extreme federalism decisions of the Rehnquist court, such as the Florida Student Loan case.
The doctrine of stare decisis is one of the ways people are convinced to believe that justice and the law exist outside of the predelictions of the individuals exercising judicial power, and I am sure it is very comforting to judges not to have to take personal moral responsibility for every decision they make, but Supreme Court justices are not that naive. They know they have the sword, they have to figure out when to wield it, when to threaten to do so, and when to keep it hidden. Which is why the Sicilian does so well.
Comment by Roger Friedman — March 26, 2008 @ 10:44 pm
Jacob Berlove,
Another interesting thing is that if you look at the December sitting, it’s apparent that Boumedienne is being written by Kennedy, Ginsburg or Souter.
Now, since Stevens wrote for the liberals in the previous War/Executive Power cases Rasul and Hamdan and especially since Boumedienne directly follows from Hamdan, you’d think he’d write for them again. But he already wrote in the December sitting.
Neither Ginsburg nor Souter has really written any big opinions for the liberals lately as Stevens pretty much keeps the big ones to himself(see Hamdan, Rasul, EPA). It’s unlikely he’d assign it to one of them rather than hand down a “legacy” case himself.
That means it’s likely that Kennedy is writing Boumedienne. Based on his questions at Oral Argument as well the fact that Stevens has already written, it’s further highly likely that Kennedy was assigned the case not by Stevens but by Roberts, which means the Conservatives prevailed. That would be somewhat of a surprise and a pretty big win for them.
If you look at the other big cases from the term: Baze, Crawford, Heller, and Williams it appears the Conservatives have prevailed in all of them.
Combined with last years results that’s a pretty good swing to their side.
I remember a post from Tom over the Summer about how the liberals were poised to win all the big cases this year and it appears that they could very well lose them all instead.
If the Dems continue to implode and President McCain can replace one of the liberals during his term, the Conservative dominance of the Court would be cemented.
Comment by rufus peckham — March 27, 2008 @ 12:00 am
Scalia is probably writing Williams.
Kennedy is writing Boumedienne(although it will probably be a conservative victory, it will be a watered down, moderate written opinion, with many concurences and dissents)
Chief Justice Roberts is very similar to Justice Stevens in only one fashion and that is he likes to write all the major historical opinions himself. So he will probably write Baze, Heller, and Crawford v. marion County.
The only major victory for the liberals will probably be Kennedy v. Louisiana(Capital punishment for child rape).
Comment by Danny Evans — March 27, 2008 @ 1:27 am
Not sure I agree with the Boumedienne prediction some are making in the comments. I agree that it’s likely to be a Kennedy opinion, but I think it’s going to be a victory for the leftists on the Court. Now, I have a hard time imagining Kennedy going for a sweeping liberal ruling in that case, but I do think it’ll be one Breyer and co. will willingly support, at least in part. I think that’s unfortunate, but it is what it is.
As for other cases, I’m guessing Scalia for Williams, Alito for Santos, and beyond that I haven’t a clue. I can’t wait to see how Kentucky v. Davis pans out.
Comment by Tom Williams — March 27, 2008 @ 1:55 am
Could Stevens gave given Kennedy Boumedienne to make sure he didn’t lose his vote, similar to the approach he took with Lawrence?
Comment by Mortez Jackson — March 27, 2008 @ 10:25 am
I don’t think Baze or Crawford v. Marion County count as “historic” enough for the Chief to make an extra point to take the case himself.
Comment by Jacob Berlove — March 27, 2008 @ 12:12 pm
The Chief writing both Baze and Crawford. is unlikely as they are both from the same sitting. I think it’s likely he does write at least one of them, though.
There’s no evidence that Stevens was ever in any danger of losing Kennedy’s vote in Lawrence. I think the more likely reason is that Kennedy had written in Romer and so Stevens figured he was already the “pointman” on gay rights issues and had done a good job before where he hinted at overturning Bowers so he may as well let him finish the job.
Even if the conservatives win Boumedienne, it’s unlikely to really matter, though. The trials will never happen. If the dems win in November, the trials will never happen and even if McCain wins he’s said he’s closing GItmo and moving everyone to Leavenworth which totally changes everything.
You really think the liberals will win Kennedy? What makes you think that? Kennedy is obviously the swing vote and I know based on Roper and Atkins you’d think he’d side with the petitioner, but he looks set to uphold the death penalty in Baze and child rapists aren’t quite as sympathetic and politically correct as the retarded and kids.
Comment by rufus peckham — March 27, 2008 @ 1:41 pm
Yes I think Crawford and Baze will be “historic” in the sense that if the conservatives win, as is expected, it will keep the death penalty intact, whereas if the liberals won, which is unlikely, it would have been a back door attempt to eliminate the death penalty. With the last two elections being very close Crawford could play a very important role in ‘08. If the conservatives win, which is expected, it will keep felons, illegal immigrants, and “dead people” from voting for the liberal candidate.
Yes I will be shocked if Kennedy allows the death penalty for a child rapist simply because of his vote in Roper and Atkins, which I might add was a switch in his vote from when he joined the court.
His reasoning was international opinion on the death penalty for the retarded and people under 18 years of age. I do think he will be just as worried about international law and opinion in Louisiana v. Kennnedy. But maybe he will defer to a state right concerning capital punishment.
Comment by Danny Evans — March 27, 2008 @ 2:33 pm
I believe the post overlooks a much more recent example of the Court ordering the parties to address whether a prior decision should be overruled. In eBay v. MercExchange (2005), the Court granted the petition and further ordered the parties to address “Whether this Court should reconsider its precedents, including Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405 (1908), on when it is appropriate to grant an injunction against a patent infringer.” Unlike in Pearson, the Court’s order did not specifically use the word “overrule,” but that was the plain import.
Interestingly, the Court’s opinion in eBay does not mention the additional question presented, and in fact cites Continental Paper Bag in support of its holding.
Comment by Mark Freeman — March 27, 2008 @ 5:27 pm
Danny Evans,
Whatever your views concerning the importance of Baze and Crawford, the only areas where it appears that the Chief Justice has made a special point of taking a case for himself are those concerning the military or international relations, and other conservative cause celebres like affirmative action, campain finance, and (to some extent, although it divides conservatives), the negative commerce clause. I think Heller is similar in this regard, but don’t expect questions of the standard for challenging execution methods or state voter id requirements to carry the same “historic” quality or importance in the mind of the chief.
Comment by Jacob Berlove — March 27, 2008 @ 6:45 pm
I agree that Heller is most likely to be written by the Chief based on the above.
One thing that hasn’t been mentioned is that Heller was written by Silberman in the DC Ct and Silberman is very good friends with both Scalia and Thomas(and Roberts I would assume, although to a lesser extent since Roberts is younger. He’s still part of that beltway crowd, though)
I think that increases the likelihood they’ll want to affirm his opinion in its entirety, including the strict scrutiny. It would be interesting to a study as tohow Silberman’s opinions have fared upon Supre Court review, and particularly among Scalia, Thomas and Kennedy. I bet their affirmance rate is pretty high
Comment by rufus peckham — March 27, 2008 @ 9:53 pm
Baze and Crawford may not be very important to the Chief but as for “historic” let me just conclude with this point. Suppose Kennedy joined the liberals, which he obviously hasn’t, in Baze and it was 5 to 4 against the three prong lethal injection method. Then that would eliminate the main method for execution, which would mean the end of the death penalty. In 20 years we would be looking back saying this was the case that brought an end to capital punishment. But thank God there are probably 5 votes to uphold this means of execution. So looking back in 20 years we can say this was the case that saved capital punishment. I would say that would be historic.
I think the Chief will be writing at least 2 0f the 3–Baze, Heller, Crawford.
Comment by Danny Evans — March 27, 2008 @ 10:52 pm
“But thank God there are probably 5 votes to uphold this means of execution”
Thank God we will execute more people via a system that is pretty arbitrary. A dubious think to thank God for, I dare say.
As to the very first comment, its contempt doesn’t really follow. Just one reason … note how he notes “Neither the law nor the facts” requires the reversal. Developments since Gregg suggest just that in the area of the death penalty as a whole, as compared to the specific area of victim impact in the few years in question.
Now, if you — like the majority did — think “the law” DOES require reversal, including an erroneous earlier ruling, fine. But, he doesn’t. Where’s the hypocrisy?
Comment by JoePaulson — April 6, 2008 @ 2:29 am