UPDATE #1: Erickson v. Pardus is a per curiam opinion that rejects the too-strict pleading requirements the
UPDATE #2: Sole v. Wyner is a unanimous opinion, written by Justice Ginsburg, about what it means to be a "prevailing party" -- entitled to attorneys' fees -- in a §1983 civil rights case. The Court decided that winning a preliminary injunction is not enough if you go on to lose the case on the merits. The plaintiff, by the way, was fighting for the right to protest the war with a giant peace sign composed of naked people.
UPDATE #3: Uttecht v. Brown is a 5-4 opinion written by Justice Kennedy, with a dissenting opinion written by Justice Stevens and joined by Souter, Ginsburg, and Breyer and a dissenting opinion written by Justice Breyer and joined by Souter. This case concerns the degree of deference that is owed to a trial judge's decisions about when a juror should be excused based on an inability to follow instructions about the application of the death penalty. An excerpt from Stevens's opinion:
Today, the Court has fundamentally redefined — or maybe just misunderstood — the meaning of “substantially impaired,” and, in doing so, has gotten it horribly backwards. It appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot....I don't remember ever seeing the fact that a judge was a Supreme Court clerk used to bolster his opinion. Apparently, you're "entitled to assume" some things. I think that whole paragraph, the last paragraph of the Stevens dissent, is just screaming look at all the conservatives who agree with me. I've got Burger and Rehnquist and Powell... and Kozinski, who practically counts as a Supreme Court justice.
Judge Kozinski’s opinion for the Court of Appeals in this case is solidly grounded on the entire line of our cases recognizing the basic distinction dramatically illustrated by Justice Powell’s opinion in Darden and by Justice Rehnquist’s statement in Lockhart. He surely was entitled to assume that the law had not changed so dramatically in the years following his service as a law clerk to Chief Justice Burger that a majority of the present Court would not even mention that basic distinction, and would uphold the disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.
UPDATE #4: Safeco Insurance v. Burr is a case about the Fair Credit Reporting Act that I'm going to leave for someone else to untangle. My reticence and my use of the word "untangle" is based on this:
Souter, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy and Breyer, JJ., joined, in which Scalia, J., joined as to all but footnotes 11 and 15, in which Thomas and Alito, JJ., joined as to all but Part III–A, and in which Stevens and Ginsburg, JJ., joined as to Parts I, II, III–A, and IV–B. Stevens, J., filed an opinion concurring in part and concurring in the judgment, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in part, in which Alito, J., joined.On the bright side: No one dissented.
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Justice Stevens read his Uttecht dissent from the bench - will we now have to endure another vapid NYT op/ed saying how this highlights the court's "deep divisions"?
The plaintiff, by the way, was fighting for the right to protest the war with a giant peace sign composed of naked people.
Hopefully they were good stewards of the Earth and used the entire naked person. Waste not, want not.
"I don't remember ever seeing the fact that the judge was a Supreme Court clerk used to bolster his opinion."
What's the latin for "Any port in a storm"? ;) It's the same rationale as citing foreign law: if your argument is thin enough, you've got to cite anything that sounds remotely plausible, and so it would seem to follow that the less plausible the least plausible argument is, the thinner the overall argument must be.
Scalia's reticence seems purely because the cout included two (unnecessary) citations to legislative history in the two footnotes he declined to join. Removing those two footnotes would have gotten five members on board without any reservations - that seems precisely the kind of compromise one might expect in order to reduce the tangle, which I suppose implies that if Roberts' supposed project of reducing the clutter isn't working, it isn't working because there's reluctance in all chambers to compromise.
For the non-lawyers amongst us, could you please either limit or explain the use of legal phrases such as "per curiam". It will save us trips to Wiki-land and provide a public service in terms of our understanding of the Court's actions.
Joe - to be fair, if a post has to pause to explain every term that someone who doesn't know much about law might not know, every post on legal subjects would have to come with a glossary, and glossaries seem profoundly unbloggy. For example, in this post, I don't know why "per curiam" should require any more or less explanation than terms like pleading requirements or § 1983 actions. As you point out, the confused can make a quick sojourn to wikipedia, or even just ask for clarification in the comments.
Simon - I'm not asking for an explanation of any and all legal terminology. Most of the technical issues are frankly of lesser interest to general readers and well understood by lawyers.
But a very central issue in all reporting of the Court's decisions is the alignment of the Justices. Who votes with whom and when. Ann makes a point of highlighting that information whenever she reports decisions.
Knowing when decisions are 5-4 or otherwise is of interest. So if one decision is reported as "unanimous" and another as "per curiam", (or literally "by the court"), I am mystified by the difference and look to Prof. Altman and other knowledgeable people for enlightenment.
If there is no meaningful difference between "unanimous" and "per curiam", then why use the Latin term at all, except to establish one's membership in the inner priesthood of the Law?
Joe: Sorry. The Bush v. Gore opinion was per curiam, so I thought that made it a sort of well-known term. It means that no particular justice is identified as having written it. So the second case is, Sole, is unanimous, but we see that Ginsburg wrote it, so it's not "per curiam." And a per curiam opinion isn't necessarily unanimous (see Bush v. Gore).
Thank you Ann.
It's a minor point but Erickson v. Pardus was a reversal of the Tenth Circuit, not the Sixth Circuit.
Also, it seems to be that had O'Connor been on the Court, Uttecht v. Brown might have come out the other way. Although no fan of the Ninth Circuit AEDPA jurisprudence, she was often more sensitive to due process concerns than Kennedy. Here, it seems that on the merits, the dissent is right: even though the AEDPA requires a lot of deference to a trial judge, the Court can't simply abrogate all reviewing responsibility. It was improper to exclude Juror Z just because he harbored some reservations about death penalty. Judge Kozinski, a libertarian and a death penalty supporter, got it exactly right in his opinion.
Well, hopefully the balance will be restored when Kennedy or Scalia retires and is replaced by a more moderate jurist by a Democratic President.
Mark,
It appears the Roberts court is following the Rehnquist court's tradition of nominally upholding precedents while eviscerating them of any content.
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