"[I]f an ant in an ant farm could establish the same showing that Happy has, the ant would be entitled to a hearing."

"But at least based on present knowledge, an ant cannot possibly make such a showing. Happy is not a human, and an ant is not an elephant... [Happy] is extremely cognitively complex and comes from a highly social, empathetic species of wild animals. Those qualities of elephants make them unique in the animal kingdom, meaning the answer to the question for earthworms, domesticated pets, service animals and many animals subject to medical research, would be entirely different."

Writes Judge Rowan D. Wilson, dissenting, in In the Matter of Nonhuman Rights Project v. Breheny (New York Court of Appeals). 

Here's the NYT article about the case: "Happy the Elephant Isn’t Legally a Person, Top New York Court Rules/An animal advocacy group had argued that the elephant was being illegally detained at the Bronx Zoo, in a case involving deep ethical questions about the basic rights of highly intelligent animals."

A question asked at oral argument of the lawyer representing the Nonhuman Rights Project: "Does that mean I couldn’t keep a dog?" 

"It seems increasingly clear that the current Supreme Court Term will have to be headlined 'Justice Scalia is sorely missed.'"

"Next Wednesday, March 30, the Court will hear argument in yet another criminal case in which the unexpected passing of Antonin Scalia on February 13 will leave an unanswered 'hole' in the Court’s deliberations. Last June, Justice Scalia wrote the opinion in Johnson v. United States, in which, after an eight-year campaign originating in Justice Scalia dissents, a majority declared the 'residual clause' of a federal repeat-offender statute unconstitutionally vague.

4 boxes of new Supreme Court opinions...

... with SCOTUSblog live-blogging here.

1. Brumfeld v. Cain (PDF). About habeas relief and the question when a person is "mentally retarded and therefore ineligible for the death penalty."

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Brumfield could secure relief only if the state court’s rejection of his claim was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U. S. C. §§2254(d)(1), (2)....

We do not deny that Brumfield’s crimes were terrible, causing untold pain for the victims and their families. But we are called upon today to resolve a different issue. There has already been one death that society rightly condemns. The question here is whether Brumfield cleared AEDPA’s procedural hurdles, and was thus entitled to a hearing to show that he so lacked the capacity for self-determination that it would violate the Eighth Amendment to permit the State to impose the “law’s most severe sentence,” Hall, 572 U. S., at ___ (slip op., at 7), and take his life as well.

2. Ohio v. Clark (PDF). This is a confrontation clause case with no dissenting opinions. Justice Alito writes the main opinion, and there's a concurring opinion written by Justice Scalia that is joined by Justices Thomas and Ginsburg. Everyone accepts what the trial court did: allow the hearsay evidence that was the statement a 3-year-old boy to his pre-school teacher that identified the defendent as responsible for the marks she saw on his body. From the main opinion:

The Sixth Amendment’s Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Ohio v. Roberts, 448 U. S. 56, 66 (1980), we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore “adequate ‘indicia of reliability.’” Such indicia are present, we held, if “the evidence falls within a firmly rooted hearsay exception” or bears “particularized guarantees of trustworthiness.” Ibid.

From SCOTUSblog: "Lovers of Justice Scalia and/or the confrontation clause should DEFINITELY check out Scalia's concurrence in the judgment in Ohio v. Clark. It is some sharply worded stuff -- accuses Alito of "shoveling dirt" on the grave of the key precedents, and using intentionally confusing "dicta" to try to undermine the clause's protections." I'll be getting to all of that later.

3. Davis v. Ayala (PDF). 5-4. "Holding: Any federal constitutional error that may have occurred by excluding Ayala's attorney from part of the Batson hearing was harmless."

4. Walker v. Texas Division, Sons of Confederate Veterans (PDF). "Texas's specialty license plate design constitutes government speech, and thus Texas was entitled to refuse to issue plates featuring the proposed Confederate Veterans' design." 5-4, by Justice Breyer, with Justice Thomas joining the liberals. Justice Alito has a dissent, which is joined by the rest of the conservatives (Roberts, Scalia, and Kennedy.)

5. McFadden v. United States (PDF). "When a controlled substance is an analogue, §841(a)(1) requires the Government to establish that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act." McFadden was selling bath salts. The case is remanded to determine if the error was harmless (which it is if no rational jury would find that McFadden didn't know).

6. Reed v. Town of Gilbert (PDF). "The Sign Code’s provisions are content-based regulations of speech that do not survive strict scrutiny." Justice Thomas writes the main opinion. There are also 2 concurring opinions.

"A New York judge has ordered state lawyers to justify why two chimpanzees living at a public university on Long Island shouldn’t be granted the same rights that protect humans from illegal imprisonment."

"Responding to a petition for a writ of habeas corpus on behalf of two young adult male chimpanzees, New York Supreme Court Justice Barbara Jaffe late Monday issued a brief order demanding the State University of New York at Stony Brook to explain why the animals shouldn’t be moved to a Florida sanctuary."

The Nonhuman Rights Project filed a petition last month on behalf the chimpanzees, named Hercules and Leo, arguing that they are “autonomous and self-determining beings” who should be “protected by the common law of habeas corpus,” a right granted only to “legal persons.” The chimpanzees are being used for locomotion research, according to the group.

 (Note: In New York, a "Supreme Court Justice" is a trial level judge.)

If you spend $1 million on your defense lawyer, how can you credibly claim you didn't even get the constitutional minimum, effective assistance of counsel?

Cynics will say, the way to do that is: 1. Get convicted because a well-paid lawyer wasn't able to persuade a jury to see reasonable doubt, and 2. Pay more money for more lawyers and persuade a judge of what you need to overturn the conviction. And super-cynics will add: 3. Be a Kennedy.

But just because you paid a million dollars doesn't mean your lawyer was any good. Michael Skakel picked a TV-talking-lawyer-head. And maybe that's exactly the screw-up a Kennedy would make — mistaking superficial appearance and fame and money for competence.

The live-blog of new Supreme Court opinions.

Going on now at SCOTUSblog.

UPDATE: "Time to roll out the hashtag that one of our readers suggested: #waiting for fisher." Fisher is the affirmative action case we've been waiting for since last fall. There were 2 new cases today, both dealing with procedural matters relating to raising constitutional challenges to criminal convictions.

"There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner."

The Supreme Court, per curiam, grants a petition for certiorari and a motion for leave to proceed in forma pauperis, and delivers an immediate reversal, after the 9th Circuit blatantly disregards the standard imposed by the federal habeas statute.

Habeas corpus denied.

It is not the way to get your daughter not to live with her boyfriend.

"I am a major and no one can tell me where to go or not. I am committed to being with my friend and he will take care of me. Please escort me to the main gate of the court and I will manage my life from there".

After all that...

... Danforth loses.

Click the "Danforth" tag to see how excited I was about Danforth.

"The alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings."

Lawprof Richard Epstein has a NYT op-ed on Boumediene:

This 5-4 decision was correct. The conservative justices in the minority were wrong to suggest that the decision constitutes reckless judicial intervention in military matters that the Constitution reserves exclusively for Congress and the president....

The defendants’ entire case would collapse if the Bush administration were prepared to offer substantial evidence of their enemy combatant status, sparing everyone unneeded uncertainty and expense. Boumediene v. Bush is not a license to allow hardened terrorists to go free. It is a rejection of the alarmist view that our fragile geopolitical position requires abandoning our commitment to preventing Star Chamber proceedings that result in arbitrary incarceration.

ADDED: WaPo reports:

Senior lawyers inside and outside the Bush administration repeatedly warned the White House that it was risking judicial scrutiny of its detention policies in Guantanamo Bay if it did not pursue a more pragmatic legal strategy that considered the likely reaction of the Supreme Court. But such advice, issued periodically over the past six years, was ignored or discounted, according to current and former administration officials familiar with the debates.

"The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

The AP reports:

The Supreme Court ruled Thursday that foreign terrorism suspects held at Guantanamo Bay have rights under the Constitution to challenge their detention in U.S. civilian courts.

Justice Kennedy writes for the 5-4 majority. Chief Justice John Roberts, for dissenting, accepted the government's "generous set of procedural protections."

UPDATE: Orin Kerr says it's exactly what he expected and what "you could see coming from miles (or in this case, years) away."

You can't demonstrate here. This is the Supreme Court.

81 people were arrested for demonstrating in front of the Supreme Court today.

Dreaming of a heroically liberal Supreme Court.

Linda Greenhouse has a piece today about liberals scheming to "take back" the Supreme Court.

[S]ome liberal legal scholars suggest that beyond political tactics, what the left urgently needs is a long-term strategy built around an affirmative message of what the Constitution means and what the enterprise of constitutional interpretation should be about....

Exactly what that vision should encompass is now the question. It is easy enough to find consensus on a checklist that would include a robust reading of the guarantees of the Bill of Rights, including the notion that some rights are fundamental; a constitutional interpretation not tethered to a search for the framers’ original intent; invigorating the right to privacy to include personal privacy in the electronic age; restoring the shield of habeas corpus; and recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans.

Recapturing the government’s ability to intervene for the benefit of African-Americans and other minority groups without being constrained by the formal and ahistorical neutrality that liberals saw as the conceptual flaw in the chief justice’s opinion a little over a week ago invalidating two voluntary school integration plans. That's one hell of a snappy phrase.

Actually, the reason that item looked so awkward on the checklist is that it's different from all the other items. Greenhouse had to strain to try to make it not look different. Everything else is about expanding constitutional rights, and that one's about narrowing rights. The way you "recapture" "ability" (AKA power) for the government is by cutting out the rights.

Greenhouse interviewed a few liberal lawprofs who bemoaned the loss of the "heroic" liberal Supreme Court justice and spoke of a long time line for getting back to a Court that would resemble what we had in the days of Earl Warren. But there's no substance to this plan. It's just the expression of a wish about the future (or a longing for the past).

This grand vision for a Court that would expansively and actively enforce rights will be seen by present day voters as a political proposal. If people today really want that vision, they can get it from the political branches. They don't need a reactivated liberal Court.

The liberal lawprofs' dream seems to be that you could get people to believe that the expansive vision of rights is the proper way to do constitutional interpretation and they'd be willing to go along with that even if they didn't want these rights enough to support enacting them into law through statutes. But what are the chances that people today would allow liberal academics to convince them of such a thing?

Panetti spared.

A 5-4 decision written by Justice Kennedy will mean more consideration of the question whether Panetti is too mentally ill to understand why he is being punished. Here's the case. I will have to read and write about it later, but there are some complexities about when a person may bring more than one habeas petition and the extent to which the right asserted was "clearly established." Justice Thomas's dissenting opinion -- joined by Roberts, Scalia, and Alito -- deals with the requirements of the habeas statute: "Because the Court’s ruling misinterprets AEDPA, refuses to defer to the state court as AEDPA requires, and rejects the Court of Appeals’ approach without any constitutional analysis, I respectfully dissent." Without any constitutional analysis? That's harsh.

"An alien captured and detained within the United States... has a right to habeas corpus protected by the Constitution's Suspension Clause."

A divided panel of the Fourth Circuit interprets the Military Commissions Act not to apply to civilians who are seized within the United States. SCOTUSblog reports:

Under MCA, Judge Motz wrote, ... enemy combatant status must either be determined by a Combatant Status Review Tribunal -- the military administrative panels set up by the Pentagon -- or by some other "Executive tribunal." Neither has made such a ruling as to [Ali Saleh Kahlah] al-Marri, the decision said. (The CSRT panels are operating only for foreign nationals being held at the U.S. military prison camp at Guantanamo Bay, Cuba.)...

The Circuit Court found the government's claim of "inherent" presidential authority to order military detention of civilians to be "breathtaking," and was broad enough even to allow detention of U.S. citizens.

Orin Kerr has more:

The court takes a very narrow view of the category "enemy combatant"; if I read the court correctly, it sees the category as basically limited to the catgeory of military opponent in battle rather than Al-Qaeda terrorist....

According to the Fourth Circuit, this left Al-Marri as a "civilian," and thus entitled to the Due Process protections of anyone lawfully in the United States. In other words, the AUMF just doesn't reach so far as to permit the military to detain a civilian terrorist suspect in the U.S. like Al-Marri.

Kerr predicts the court will be reversed, either by the Fourth Circuit en banc or by the Supreme Court.

Come on, everybody. Let's study outdoors.

Lovely!



Uh-oh...



It's beautiful out there, but really, can you study outdoors? Yesterday, a student said let's do the class outdoors. Oh, no, no, no. That is not going to work. I've never taken the class outdoors in 20+ years of teaching. I don't think you can take the subject seriously outdoors. The subject is habeas corpus, the death penalty... how can you talk about that outdoors?

Keep moving.

The jury must be able to "give meaningful effect or a 'reasoned moral response' to a defendant's mitigating evidence."

Wrote Justice Stevens, as the Supreme Court overturned three death sentences. Chief Justice Roberts writes in dissent: "'Whatever the law may be today, the Court's ruling that 'twas always so -- and that state courts were 'objectively unreasonable' not to know it -- is utterly revisionist,'' Roberts said.

I'd like to explain that to you, but I've got to get my notes together for my federal jurisdiction class, where we happen to be studying the very aspect of habeas corpus law that you need to know to understand what Roberts is talking about.

From the Roberts opinion:

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), however, a state-court decision can be set aside on federal habeas review only if it is "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1). When this Court considers similar challenges to the same jury instructions five separate times, it usually is not because the applicable legal rules are "clearly established." The Court today nonetheless picks from the five precedents the one that ruled in favor of the defendant -- Penry I -- and anoints that case as the one embodying "clearly established Federal law." In doing so the Court fails to give any meaningful weight to the two pertinent precedents subsequent to Penry -- Graham and Johnson -- even though those cases adopted a more limited view of Penry I than the Court embraces today.

Another Monday.

Just another manic Monday....

... as the Spring semester crashes in toward a close. Time for cutting pages out of the syllabus and thinking up efficient strategies for presenting the doctrines left for the end. Habeas corpus! Separation of powers! It's harrowing.

But this week is a short teaching week, as I'm off to a conference at Dartmouth -- as noted here. The conference is on Thursday, so that leaves me on my own in Hanover, New Hampshire for the weekend. What to do?

(That linked video is sublime, by the way. Makes you want to do your Susannah Hoffs imitation, doesn't it? It's the easiest imitation in the world, you know.)

Are you, like me, always clicking on news stories about speeches given by Supreme Court justices...

... and finding that nothing interesting was said? It's so predictable. Sometimes I wonder why I have the Google Alerts I have. Actually, I have one for "Rehnquist" that has malfunctioned and become undeletable -- kind of like life tenure, but for an undying reputation.

My Google Alerts are meant to feed me bloggable nuggets. I have some that reliably turn up good material. But the ones for Supreme Court justices regularly turn up stories like this. I'm not picking on Ruth Bader Ginsburg here. But when justices go out and give speeches at law schools they say anodyne things like: "The benefits of a diverse student population are not theoretical but real."

Oh, yes, maybe Justice Scalia will say something cutting, but it will be the same cut we've heard before.

All the same, I'm not asking them to be more interesting. It's not their job to amuse me. In fact, I think they are required to be that special, judicial kind of boring.

Oh, let me be that special, blogger kind of predictable and reprint this anecdote I tell at the beginning of an article called "Late Night Confessions in the Hart and Wechsler Hotel" (47 Vand. L. Rev. 993 (1994)):

Chief Justice Rehnquist visited my law school last year to deliver a lecture entitled "The Future of Federal Courts." The University Theater filled: overdressed alumni in the front rows, respectful students in the balcony, camouflaged professors here and there. I sat in the middle and hunched over a folded-up sheet of legal paper. I scribbled notes and hoped for some insight into the tangled mass of problems I had made my life's work. Would the Chief Justice perhaps explain the Court's new habeas corpus jurisprudence? I wanted a little accounting for Butler v. McKellar, in which he had denied federal court relief to a man who faced the death penalty after a conviction based on a confession that the Court's own case law would, without question, exclude.

The Chief told some jokes, elaborated on his ties to Wisconsin, and discoursed at length about the workload of the courts. The issues were neutral, administrative, managerial, structural.

"Did he say anything provocative?" asked a colleague who had missed the speech.

"He never got any more provocative than to say he's against diversity."

My friend was shocked. "He's against diversity!?"

"Diversity jurisdiction," I said, realizing she was not a proceduralist.

Maybe in the style of an evolving Constitution, the judicial norms change -- even though they retain that sober feeling. It would have been surprising in 1993 if Rehnquist had opined on racial diversity, and now it seems utterly conventional for Ginsburg to say "The benefits of a diverse student population are not theoretical but real."

"Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct..."

The Supreme Court issued its opinion today in Carey v. Musladin, the case about spectators at a murder trial who wore buttons showing the photograph of the victim. Here's our discussion of the case from back at the time of the cert grant. Many of the commenters thought the defendant's rights were violated, but I said that under the standard applicable on habeas -- whether the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" -- the Supreme Court would have to leave the state court's decision intact.

Justice Thomas writes the unsurprising opinion:

In contrast to state-sponsored courtroom practices, the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence. This Court has never addressed a claim that such private-actor courtroom conduct was so inherently prejudicial that it deprived a defendant of a fair trial. And although the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators’ conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices....

Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law.” §2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law.

There are no dissenting opinions, but there are three concurrences, from Stevens, Kennedy, and Souter. From Souter's opinion:

[O]ne could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. The display is no part of the evidence going to guilt or innocence, and the buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the buttons) and a call for some response from those who see them. On the jurors’ part, that expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of survivors with a conviction would be the paradigm of improper consideration.

The only debatable question is whether the risk in a given case reaches the “unacceptable” level. While there is a fair argument that any level of risk from wearing buttons in a courtroom is unacceptable, two considerations keep me from concluding that the state court acted unreasonably in failing to see the issue this way and reverse the conviction. First, of the several courts that have considered the influence of spectators’ buttons, the majority have left convictions standing. See, e.g., State v. Speed, 265 Kan. 26, 47–48, 961 P. 2d 13, 29–30 (1998); State v. Braxton, 344 N. C. 702, 709–710, 477 S. E. 2d 172, 176–177 (1996); State v. Lord, 128 Wash. App. 216, 219–223, 114 P. 3d 1241, 1243–1245 (2005); Nguyen v. State, 977 S. W. 2d 450, 457 (Tex. App. 1998). I am wary of assuming that every trial and reviewing judge in those cases was unreasonable as well as mistaken in failing to embrace a no-risk standard, and so I would find it hard to say the state judges were unreasonable in this case, given the lack of detail about the buttons’ display. Second, an interest in protected expression on the part of the spectators wearing mourners’ buttons has been raised, but not given focus or careful attention in this or any other case that has come to our notice. Although I do not find such a First Amendment interest intuitively strong here, in the absence of developed argument it would be preferable not to decide whether protection of speech could require acceptance of some risk raised by spectators’ buttons.

Does this mean the case might have been better litigated? The First Amendment argument could have been developed. (Justice Stevens makes a point of saying that argument is obviously meritless.) And there could have been more concrete information about what these buttons were like. Justice Thomas had something to say about that too:

The record contains little concrete information about the buttons. The buttons were apparently two to four inches in diameter and displayed only a photograph of [the victim] Studer. It is not clear how many family members wore the buttons or how many days of the trial they wore them.

But perhaps the buttons were small and rarely worn, in which case, it wasn't a bad decision to leave out the details.