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Swinging for the fences

This afternoon Lyle posted an excellent recap of today’s argument in Johnson v. Williams.  Like him, I was struck by the decision of the state’s lawyer not to embrace more modest rules proposed by, among others, Justice Kennedy.  But I differ a little from Lyle, in that I think that the lawyer made the right decision in the special circumstances of this case.  I’m trying to attend all of the oral arguments this Term, and hope to have the opportunity to offer thoughts on issues like this.

In Johnson, California argues for a categorical rule that a state court decision always resolves the “merits” of a federal “claim” – which entitles it to deference on federal habeas corpus – unless the court expressly says otherwise.  As a practical matter, the only example the state can provide of a decision that would not be on the “merits” is a ruling that the claim has been procedurally defaulted and therefore will not be considered.  The state court would never otherwise expressly say “we have before us a properly presented federal claim, but we refuse to consider it.”  So California’s proposed rule would almost always result in deference to state court rulings.

It quickly became apparent at the argument in Johnson that a majority of the Justices believe that California easily would win this case under a much narrower rule, which is applied by most circuits:  that there is a strong, but rebuttable, presumption that the state courts have resolved the federal claim.  Here, the Justices indicated, the state court’s opinion contains substantial clues that it was resolving the defendant’s federal constitutional claim.  And that would be enough to decide the case.

California’s lawyer expressly accepted that the state would win under that rule.  But she did not dwell on it.  Instead, she consistently pressed the state’s arguments for the categorical rule.

I think that was the right decision in the circumstances.  It was clear from the argument that the narrow rule is a “bird in the hand” for the state.  Nothing is going to dissuade a majority of the Court from giving California at least that.

But the state had the chance of assembling a majority for its broader rule.  And it has a significant interest in many other cases in having a categorical rule that better insulates rulings of the state courts from federal habeas challenge.  Also, if the question is close, it is generally better for a lawyer to stick with the argument set forth in her brief.

Many times, a lawyer will pay a steep price for failing to embrace and run with a path to victory offered by a majority of the Supreme Court.  But because I think that the state her lost nothing by sticking to its guns, I don’t think that Johnson is such a case.

I agree with Lyle that several members of the Court were skeptical of the rule of law applied by the California courts on the substantive federal claim (an issue relating to the Sixth Amendment right not to have a juror removed for bias) presented by the habeas petition – an issue on which the Justices had denied cert.  I thought that the state’s lawyer held her own in answering their concerns, as they related to the facts of this particular case.  But there is a real chance that in an appropriate case the Justices will take up the California courts’ interpretation of the Sixth Amendment.

Recommended Citation: Tom Goldstein, Swinging for the fences, SCOTUSblog (Oct. 3, 2012, 9:10 PM),