Recap of Oral Argument in Rice v. Collins

Today’s oral argument in Collins v. Rice revolved around the question of what standard of review federal courts must apply to a determination of the facts by a state court in federal habeas corpus cases under 28 U.S.C. § 2254. The Court was reviewing a determination by the Ninth Circuit that a California state court unreasonably erred when it found no Batson violation after a state prosecutor had trouble coherently explaining why she had dismissed an African-American juror.

Attorney General Bill Lockyer argued for the State of California, suggesting that this case presented the Court with an opportunity to clarify the limits of last term’s holding in Miller-El and to reemphasize the importance of deferring to state courts within the habeas context. From the inception of Lockyer’s argument, the Court was exceptionally deferential. Lockyer had finished his entire scripted opening, lasting close to five minutes, before the silence was broken by a relatively mild question by Chief Justice Roberts.

Justice Kennedy asked Lockyer to explain how articulate and coherent a prosecutor’s explanation was required to be, a standard that Lockyer suggested was fairly low in light of the fact that peremptory challenges are by and large expressions of instinctual aversion. Justice Scalia found Lockyer’s argument persuasive, explaining that he had no problem with the prosecutor’s failure to coherently explain the bases for dismissal since she was being asked to rationally explain what is at nature an instinctive reaction.

The Justices used Lockyer’s argument time as an opportunity to dialogue among themselves through the use of questions. Justice Souter expressed his concern that it is difficult to defer to a state court’s factual determination under these circumstances where the prosecutor had no coherent explanation and the court failed to provide a detailed explanation for its rejection of the Batson claim. Before Lockyer could fully answer that question, Justice Scalia helpfully asked Lockyer to remind him whether a state court was required to figure out why a prosecutor struck an African-American juror, or simply whether it was required to ensure that she was not struck due to her race. Lockyer explained that the judge is only required to ensure that no prejudicial animus pervades the decision-making, but Justice Stevens expressed concern over what to do when a prosecutor may be acting in good faith, but is motivated by unconscious racial stereotyping. Justice Scalia made it clear that he would be reluctant to require state court judges to “psychoanalyze” prosecutors to ensure that unconscious bigotry was not influencing their decisions.

Lockyer remained relatively unscathed, happy to allow the Justices to debate among themselves. Mark Drozdowski, a Deputy Federal Public Defender from California would not be so lucky. Drozdowski bore the unenviable task of convincing the Court that the Ninth Circuit was justified in finding that the state trial court unreasonably found no Batson violation even though the prosecutor had provided two constitutional explanations – the juror’s young age and her allegedly disrespectful demeanor. According to the prosecutor, the juror had rolled her eyes at the judge, even though the judge had not seen it. Perhaps expecting a friendlier welcome, Drozdowski seemed rather fazed to be met with wide skepticism by the Court.

Justice Roberts suggested that Drozdowski was asking the Court to overturn a state court’s factual determination simply because the public defender did not believe the rationale offered by the state prosecutor, whether or not the state court was reasonable to believe it. Justice Scalia admitted that the state court could have found a Batson violation, but proving that it must have found a Batson violation requires carrying a “heavy burden” and is “difficult to establish.” Justice Ginsburg stated that there was simply no evidence to suggest that the eye-rolling did not occur and that that explanation would be constitutional. Justice Breyer flatly stated that he could not figure out what would be required of prosecutors were the Court to side with Drozdowski.

In light of the very different welcomes provided by the Court, it appears extremely unlikely that Collins’s habeas challenge will survive on appeal.

As a postscript, it bears noting that Justice Thomas asked two questions: (1) whether the parties knew the race of the prosecutor, and; (2) whether that would matter. Drozdowski stated that it would not.