Tag Archives: United States Supreme Court

Introducing SCOTUS Map

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Victoria Kwan and I have been working on a few projects for the past few months. One of our more recent efforts is SCOTUS Map. (SCOTUS stands for “Supreme Court of the United States.”)

This map, based entirely on Victoria’s research (and my rudimentary knowledge of HTML, CSS, and JavaScript), displays where the current and retired Supreme Court justices are speaking throughout the summer and into the fall.

The map includes details on each event itself, the venue, registration information, and (eventually) post-event recaps. The right-hand sidebar lists all events, both past and future, in chronological order. SCOTUS Map will be continually updated as new events are announced, and we plan on creating new iterations of it for each successive Court term (and recess).

The map is permanently available at http://scotus.victoriakwan.com/pages/scotusmap. (Visiting http://scotus.jaypinho.com/pages/scotusmap will take you to the exact same page as well.) Please note that it is best viewed on a desktop computer, as tablets and especially mobile phones tend to squeeze the dimensions a bit.

We invite you to take a look. If there are any events involving Supreme Court justices that we haven’t yet added, please let us know by tweeting at @SCOTUSMap or by sending us an email.

Finally, keep checking back here, as we have other projects in the works that we think you’ll enjoy (especially if you happen to be a legal nerd).

Thank you!


[Infographic] Supreme Court Strikes Down Key Section of Voting Rights Act

In a highly-anticipated 5-4 decision today, the Supreme Court struck down a key part of the Voting Rights Act, ending nearly a half-century of robust federal supervision over the election procedures of states with histories of racial discrimination.

At issue in Shelby County v. Holder was the Act’s requirement that certain states and districts obtain federal approval prior to changing their election laws, in a process known as Section 5 “preclearance.” To determine which areas of the country would be “covered” and therefore subject to preclearance, Congress in 1965 wrote into the Act a coverage formula, also known as Section 4. This formula asked whether a jurisdiction had a voting test in the 1960s or 70s, and had low voter registration or turnout at the time; if the answer was yes, then Section 5 applied to that jurisdiction.

In 2006, Congress renewed the Voting Rights Act without making any changes to the Section 4 coverage formula. Shelby County, a covered jurisdiction in Alabama, challenged the constitutionality of the Act. Today, a majority of Justices agreed that the coverage formula “can no longer be used as a basis for subjecting jurisdictions to preclearance,” saying that the decades-old data does not reflect the strides that states have made in eradicating voter discrimination. Chief Justice John G. Roberts’ majority opinion left it open to Congress to re-write a new coverage formula, but as Rick Hasen of the Election Law Blog notes, this is highly unlikely given the degree of polarization in today’s Congress. It’s interesting to note that the Court did not get to the constitutionality of Section 5, but it didn’t have to–invalidating Section 4 releases all jurisdictions swept up by the formula, effectively stripping the Voting Rights Act of most of its power.

Collectively, the majority opinion, concurrence and dissent run 68 pages long, but I’ve assembled some highlights from each Justice, which you can read by scrolling over the graphic above. (You can also enlarge the graphic by hovering over the icon in the top-left corner and selecting the link to “see more.”) Each dot will open up a box that shows key quotes from that Justice: one (or two) from the March oral argument, and one from today’s decision (if the Justice wrote an opinion, concurrence or dissent). The red dot indicates the author of the majority opinion. The yellow dots indicate the rest of the Justices who were in the majority, and the blue dots indicate the dissenters.

Waiting for #SCOTUS: now we know next week is going to be amazing

Thursday morning came and went without any decisions from the Supreme Court on same-sex marriage, affirmative action in public universities and the constitutionality of a key provision in the Voting Rights Act, meaning that next week (the last scheduled week of this term) is going to be amazing. We did get rulings in three other cases (Descamps v. United States on enhanced sentences for those with prior convictions, American Express v. Italian Colors on class action suits and arbitration clauses, and Agency for International Development v. Alliance for Open Society on government preconditions for aid and the First Amendment), leaving the number of yet-to-be decided cases at 11 now. Here’s the tweet recap (tweetcap?) of the frenzied period between 10:00-10:30 a.m. EST this morning:

Finally, of course:



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Right Question, Wrong Case: Louisiana Dodges a Bullet as Supreme Court Dismisses Inmate’s Speedy Trial Claim

Samuel Alito
Tl;dr version of today’s dismissal: Jonathan Boyer is a man who deserves to be in prison, so it’s not necessary to talk about what Louisiana’s criminal justice system might have gotten wrong. Picture of Justice Samuel Alito via PBS.

(Update: This post was revised on April 30, 2013. See the post history at the bottom for more details.)

Back in January, I wrote in this space about Boyer v. Louisiana, in which an indigent death penalty defendant argued that the state had violated his constitutional right to a speedy trial when it failed to provide funds for his court-appointed counsel, resulting in a seven-year wait for trial from prison. The Supreme Court had just heard oral argument on the agreed-upon question of whether Louisiana’s lack of necessary funds for defendants could be weighed against the state under the Court’s speedy trial analysis. My answer to this key issue then was (and still is) yes–regardless of Jonathan Boyer’s eventual conviction for the murder for which he was charged, the state needs to bear some responsibility for its failure to repair the infamous and well-documented funding crisis in its public defense system, which has led directly to long delays for the trials of indigent defendants.

Today, however, the Supreme Court dismissed Boyer’s case without even reaching this important constitutional question, seemingly unable to look past the heinous shooting death of which Boyer stood accused. In a one-sentence, 5-4 decision, an ideologically-divided Court stated that it had been “improvidently granted” (or, “DIG,” in Court-watcher parlance), meaning that it should have never agreed to hear the case at all. The reason? As Justice Samuel Alito explains in his concurrence,1 some of the justices do not accept the premise that it was actually Louisiana that caused the “lengthy delay between [Boyer’s] arrest and trial,” despite the state’s longstanding problems with indigent defense. Rather, they believe that the defendant himself convoluted and muddled the path to trial. Since they don’t think that Louisiana was at fault, the question that the Court had originally agreed to hear–which had assumed the state was the party responsible for the delay–was not the correct one the case should be decided on.

To reach DIG, Justice Alito had to step over the Louisiana Court of Appeals’ factual finding that “[t]he majority of the seven-year delay was caused by the ‘lack of funding’” and the state’s own admission that it could not free up adequate money to pay Boyer’s two court-appointed counsel to mount a capital murder defense. Attributing Louisiana’s admitted lack of funds to mere “confusion about which branch of the state government was responsible for paying [the defense attorney’s] fees,” Alito looks to the record and describes the state getting railroaded by the defendant’s counsel when in fact it was trying to bring Boyer to justice promptly. In Alito’s recounting, Boyer’s attorneys took advantage of the “confusion” by repeatedly delaying a funding hearing, as well as asking for multiple continuances of trial even after the state dropped its pursuit of the death penalty (thus making the case less expensive to defend). Explaining away the plain language of the Louisiana Court of Appeals’ conclusion about the cause of delay, Alito insists that the words “lack of funding” “most likely means” the hoopla surrounding the funding of the indigent Boyer’s trial (which to Alito was largely caused by Boyer himself), rather than, well, the state’s lack of funding.

Of course, in the eyes of the Supreme Court’s conservative majority, what really did Boyer in is the fact that he was eventually convicted of murder, a fact that makes him a less sympathetic plaintiff than if he had been exonerated at trial after languishing for seven years in prison. Just to remind us all of what kind of person the state was dealing with, Alito writes:

The evidence of petitioner’s guilt was overwhelming. He gave the police a detailed statement describing the murder; his brother, an eyewitness, agreed to testify about the crime; multiple other members of petitioner’s family told police that they had heard petitioner confess; and petitioner’s fingerprints were found in the victim’s truck.

Accordingly, a sense of “well, he deserved it anyway” permeates the concurrence–Jonathan Boyer was found guilty of shooting a man to death, so it’s no big loss to society to dismiss his case and avoid the larger question of whether Louisiana also did something wrong here. In fact, Justice Alito thinks that Boyer has already gamed the system through his delaying tactics and gotten a better deal out of the state as a result: “It is also quite clear that the delay caused by the defense likely worked in petitioner’s favor…[W]hat started out as a very strong case of first-degree murder ended up, after much delay, in a conviction for lesser offenses.”

Having successfully schemed his way to get out of the death penalty, Jonathan Boyer doesn’t deserve anything more from this court. What Alito pointedly ignores, however, is the fact that even if this is true in Boyer’s case, Boyer is not the only indigent inmate in Louisiana’s prisons who has seen a trial delay thanks to dithering (or “confusion”) on the part of the state.

Justice Sonia Sotomayor’s dissent against the improvident grant ruling points out as much. Writing for herself and Justices Breyer, Kagan and Ginsburg, Sotomayor doesn’t disagree with the jury finding that Boyer was guilty of second-degree murder, but she does think that the Court needs to take this opportunity to clarify the state’s speedy trial obligations, precisely because Boyer’s situation is not a unique or isolated one. Specifically, Sotomayor states that the lower court should have weighed the failure to fund against the state in Boyer’s speedy trial challenge:

Placing the consequences of such a delay squarely on the State’s shoulders is proper for the simple reason that an indigent defendant has no control over whether a State has set aside funds to pay his lawyer or fund any necessary investigation. The failure to fund an indigent’s defense is not as serious as a deliberate effort by a State to cause delay… But States routinely make tradeoffs in the allocation of limited resources, and it is reasonable that a State bear the consequences of these choices.

Justice Sotomayor warns that the Court may have avoided that constitutional issue today, but sooner or later, it will have to come up with an answer about the state’s accountability. In the meantime, indigent inmates in Louisiana continue to await trials from behind bars due to the state’s funding crisis, being treated as if they were guilty before proven innocent (or guilty)–a fact that Sotomayor backs up with empirical studies showing significant understaffing of Louisiana’s public defender services and average waits of 501 days between felony arrests and trials in some parishes. Jonathan Boyer’s case may have been particularly outrageous in just how long he had to wait for his, but, as Sotomayor writes, his case is indicative of “larger, systemic problems in Louisiana.” What Justice Alito and the majority forget is that the Sixth Amendment speedy trial guarantee applies to both the innocent and the guilty–and the longer the Court sits on its hands, the more likely it is that an innocent version of Jonathan Boyer will be needlessly imprisoned for years while awaiting acquittal.

As it turns out, Boyer v. Louisiana is a prime example of the right question coming before the Supreme Court but with the wrong facts and the wrong plaintiff. The Court surely would have been more hesitant to dismiss the case wholesale had the defendant been more sympathetic, the crime less horrible, the facts more ambiguous. The Boyer DIG also highlights the unique difficulty of Sixth Amendment speedy trial cases: because the Supreme Court said in 1973’s Strunk v. United States that the proper remedy for a speedy trial violation is an outright reversal of any conviction (or dismissal of indictment), courts are very hesitant to permit such a drastic measure unless they are convinced of the defendant’s innocence. This was undoubtedly a result that Justice Alito and the conservative majority did not want to see with Boyer, who they (and a non-unanimous jury) have decided deserves to spend life in prison without parole. Due to the zero-sum nature of speedy trial disputes, however, the Court’s dismissal today lets the state of Louisiana off scot-free for its failure to fix its admittedly broken indigent defense system.

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  1. Justice Alito’s concurrence was joined by Justice Clarence Thomas, who, as you may remember, stole the show at the January argument by breaking a nearly seven-year silence and cracking a joke about the quality of Boyer’s defense counsel. []

Divergent Views about the United States’ Place in World as Supreme Court Limits Reach of Alien Tort Statute

Kiobel v. Shell
Esther Kiobel stands in front of supporters. Picture via Amnesty International.

The Supreme Court on Wednesday curtailed victims’ ability to seek recourse in the United States for human rights abuses committed abroad, in a 9-0 ruling that sought to protect American corporations from being tried overseas for the same. Though all justices concluded that there was no place in American courts for an Alien Tort Statute (ATS) suit brought by a slain Nigerian activist’s widow against multinational company Shell, they seemed to agree on little else. In particular, Chief Justice John Roberts’ majority opinion and Justice Stephen Breyer’s concurrence revealed sharply divergent views about the United States’ role in the global human rights landscape.

At the heart of Kiobel v. Royal Dutch Petroleum lies the claim that Shell helped Nigeria’s Sani Abacha dictatorship perpetrate a number of horrific human rights atrocities in the 1990’s. Esther Kiobel, whose husband Dr. Barinem Kiobel had served as a prominent voice for the Ogoni people in the Niger Delta, alleges that Shell recruited the dictatorship to help quell opposition after the Ogoni mobilized against the corporation’s activities in that region. Shell purportedly gave food, money, transportation and the use of property to the Nigerian military as it raped and killed its way through Ogoni villages. Dr. Barinem Kiobel was one of the local activists the military arrested and executed.

After fleeing the country and obtaining asylum in the United States, Esther Kiobel and eleven other Nigerian nationals filed an Alien Tort Statute claim in federal court against Royal Dutch Petroleum (Shell’s parent company) for aiding and abetting torture, extrajudicial killings and other crimes against humanity. The ATS was originally written in 1789 to provide a cause of action for three things: acts of piracy, violations of “safe conduct” and assaults on foreign ambassadors in the U.S. It lay largely dormant for the next two centuries, until enterprising human rights lawyers dusted the statute off and began using it to bring civil suits against retired foreign government officials suspected of violating international law (typically the torturing and killing of their countrymen). While this modern use of the ATS has been controversial–particularly in pro-business crowds that fear a landslide of ATS claims against corporations working with unsavory regimes abroad–courts have generally accepted its application to extraterritorial human rights abuses. This reading stems from two rationales: (1) the plaintiffs, who are usually asylees and other immigrants who have escaped brutal regimes elsewhere, are unlikely to receive justice in the country where the crimes were perpetrated, and (2) as a defender of human rights, the United States should send a message that such violations are unacceptable regardless of where they occurred.

The Supreme Court, however, definitively rejected this permissive interpretation yesterday, pulling back the ATS to cover only a very small subset of human rights violations committed abroad. Chief Justice John Roberts, writing the majority opinion for himself and Justices Kennedy, Scalia, Alito and Thomas, expressed concern that a far-reaching ATS would trigger conflict between the laws of the United States and other nations. Because this statute implicates foreign policy–a field that the judiciary has traditionally been very reluctant to step into–Roberts began with a “presumption against extraterritoriality,” which is a fancy way of saying that we assume Congress wanted the statute to apply only to conduct in the United States, unless it says otherwise.

The Chief Justice then looked through the text, history and the purposes of the ATS for any indication that Congress wanted the statute to apply to acts abroad (spoiler alert: he found none). While there is in fact evidence that the Congress of 1789 had intended for the ATS to cover some overseas crimes–one of the main objectives for its passage, after all, was to combat acts of piracy, which by definition take place on the seas, outside of the United States–Roberts stated that pirates “may well be a category unto themselves” because of the way they operate outside of any jurisdiction. Drawing a firm line between the stateless nature of the high seas, which lie “beyond the territorial jurisdiction of the United States or any other country,” and a sovereign territory with an established legal system such as Nigeria, the Chief Justice worried that “unwarranted judicial interference” in the legal processes of the latter would produce serious foreign policy ramifications. Thus, corporations accused of aiding human rights abuses abroad should not be “fair game” in the same way that pirates are.

Echoing Solicitor General Don Verrilli’s warnings at the oral argument about reciprocity, the Chief Justice’s opinion also reflected concerns that a favorable ruling for Kiobel could lead to Americans (both individuals and corporations) being tried in foreign courts for human rights abuses committed in the United States “or anywhere else in the world.” Furthermore, the Chief Justice soundly rejected the idea that the presumption against extraterritoriality can be overcome because the United States must act as a human rights watchdog for the world. “There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms.” He concluded that courts must assume the ATS does not apply to overseas conduct, save for a very small and nebulously-defined exception: cases where the connection to the United States has “sufficient force to displace the presumption against extraterritorial application.”

Justice Stephen Breyer, on the other hand, still believes that the United States has a role to play as an international human rights leader. Though he ultimately agreed that the United States courts are not the appropriate fora for this specific case, Breyer favors a more expansive reading of the ATS’ reach. His concurrence, which was joined by Justices Ginsburg, Kagan and Sotomayor, rejected Roberts’ presumption in favor of a “sufficient ties to the United States” test that would apply to both claims of domestic and overseas human rights abuses. American courts should be able to hear a ATS claim if one or more of three things can be shown: (1) the alleged abuse occurred on American soil, (2) the defendant is an American national, and/or (3) the defendant’s conduct implicates a “distinct American interest,” which in Breyer’s estimation would include the United States’ interest in not becoming a “safe harbor (free of civil as well as criminal liability) for a torturer or other common enemy of mankind.” Justice Breyer found that Kiobel’s case failed to satisfy any of these three requirements, as the alleged violations occurred in Nigeria, the parties were all foreign nationals, and Shell was not directly responsible for the torture or the killing.

Breyer’s concurrence presents a markedly more optimistic picture of the United States as a “custodian” of human rights (albeit one that may not be warranted given the unending stream of news about the United States’ use of torture post-9/11 and its continued drone strikes in the Middle East). It leaves considerably more wiggle room for ATS jurisdiction over extraterritorial claims, especially where the alleged perpetrators of violations committed abroad–the “pirates of today,” according to Breyer–have relocated to the U.S. Whereas Roberts’ diminishing of the ATS insulates Americans from human rights litigation in foreign courts but leaves the U.S. open as a haven for rights violators, Breyer’s approach reverses the incentives: it deters war criminals from escaping to the United States and sends the message that the U.S. is against acts of torture and genocide, but may leave Americans vulnerable to reciprocity overseas (as well as accusations of gross hypocrisy).

In all, the Kiobel decision comes as a huge relief for corporations, with one miniscule silver lining for human rights activists. While it will be much harder to bring foreign abuse cases in the United States courts, the Supreme Court did leave the door slightly open for future litigation on whether corporations can be liable for human rights abuses.1 This was the original, narrower question on which the lower courts had decided Esther Kiobel’s case, before a group of attorneys representing corporations other than Shell asked the Supreme Court to consider instead the far broader claim of the ATS’ applicability to all extraterritorial conduct, whether perpetrated by individuals or corporations. Chief Justice Roberts’ limitation of the ATS gave them what they wanted this time. But there may well come a day when the right case with the right facts–one with “sufficient force to displace the presumption against extraterritorial application”–will fit through that tiny sliver of space and land before the Supreme Court. A battered ATS lives to see another day, but just barely.

  1. Congress could also, as Roberts indicated in the majority opinion, retool the ATS or author a new statute that explicitly imposes liability on companies that have abetted atrocities abroad and have corporate presence in the United States. This seems very unlikely to happen, though. []

Supreme Court Must-Read: Jeffrey Toobin’s New Yorker Profile of Justice Ruth Bader Ginsburg

Ruth Bader Ginsburg SOTU

She’s still got it: Justice Ruth Bader Ginsburg receives a warm welcome at the State of the Union.

The New Yorker has just published Jeffrey Toobin’s illuminating profile on Justice Ruth Bader Ginsburg ahead of her 80th birthday on March 15th. (Subscribers to the magazine can access the full text of the ironically-titled piece, “Heavyweight,” at this link.) Chronicling Justice Ginsburg’s early struggles in the male-dominated legal world of the 1950s (Ginsburg had trouble finding someone who would hire her despite having graduated first in her class at Columbia Law), her triumphs as a leading women’s rights advocate with the ACLU, her marriage to the late tax attorney Martin Ginsburg, and her tenure on the Supreme Court, the profile is an understated and touching pre-tribute to the Justice who conventional wisdom tells us is most likely to retire next.

From same-sex marriage ceremonies to retired Justice Sandra Day O’Connor, partial-birth abortion bans to Lilly Ledbetter, “Heavyweight” is full of interesting tidbits and little gems from Justice Ginsburg herself

On her brief-writing strategy while litigating cases before the Supreme Court:

“I was doing all these sex-discrimination cases, and my secretary said, ‘I look at these pages and all I see is sex, sex, sex. The judges are men, and when they read that they’re not going to be thinking about what you want them to think about,’ ” Ginsburg recalled. Henceforth, she changed her claim to “gender discrimination.”

On work-life balance:

“It bothers me when people say to make it to the top of the tree you have to give up a family. They say, ‘Look at Kagan, look at Sotomayor’ … What happened to O’Connor, who raised three sons, and I have James and Jane [her son and daughter with Martin Ginsburg]?”

On Chief Justice John Roberts:

“For the public, I think the current Chief is very good at meeting and greeting people, always saying the right thing for the remarks he makes for five or ten minutes at various gatherings.”

On how long she will remain on the bench:

“As long as I can do the job full steam… You can never tell when you’re my age. But, as long as I have the candlepower, I will do it. And I figure next year for certain. After that, who knows?”

Money quotes aside, Toobin’s piece is particularly fascinating when he discusses Justice Ginsburg’s views on the relationship between Congress and the Court. Though she is classified as one of the Supreme Court’s liberals in the vein of Earl Warren and Thurgood Marshall, Ginsburg does not share these predecessors’ conviction that the Court should be the driving force for widespread social change. Instead, Toobin writes, she believes that the Court’s role is to begin dialogue with the elected branches of government, to ask them to reconsider “ancient positions” that may no longer work in our day and age, and then to kick the proverbial ball back to them. In this respect, Justice Ginsburg is very much like President Obama, who also prefers to see social change enacted through the legislative rather than judicial arena (and whose similar views on the judiciary have also been discussed at length by Toobin). It is little wonder, then, that the two seem to get along so famously.

Anyway, the profile is a must-read for anyone who is interested in the Supreme Court, the women’s rights movement, or even just a good life story.

Forget Clarence Thomas: In Louisiana, You Can Be Guilty Before Proven Guilty

Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)
Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)

As the dust settles from Monday’s Boyer v. Louisiana oral argument before the Supreme Court, the major news takeaway is undoubtedly Justice Clarence Thomas’ breaking of a nearly seven-year silence from the bench to crack what may or may not have been a joke about the competence of either Harvard or Yale-trained lawyers (the full transcript of the argument is here).  Much hay has been made in the press over what Thomas’ joke could have meant–see the near-breathless coverage analyzing the Justice’s mindset here, here and here–but the actual arguments behind Boyer, which explores the limits of the state’s obligation to provide a speedy trial for an indigent death penalty defendant, are interesting enough to merit a second glance as well.

Jonathan Boyer and the state of Louisiana disagree over almost every aspect of what happened on the night of February 3, 2002, when Bradlee Marsh was shot three times and killed as he sat in his pickup truck. While Louisiana maintains that Boyer was responsible–a conclusion bolstered by Boyer’s subsequent confession and the testimony of Boyer’s brother–Boyer claims that his “confession” was fake and that someone else was behind the killing. Regardless of the perpetrator’s identity, all sides agree that after his arrest and indictment for first-degree murder, Jonathan Boyer waited over five years in prison for his trial to begin after Louisiana appointed but did not have the money to fund the two requisite attorneys assigned to defend his death penalty case. (The federal Constitution does not mandate two defense lawyers in capital cases, but Louisiana state court rules do.)  It was only after the state decided to drop the first-degree murder charge–a move which took the death penalty off the table and made his case less expensive to defend–in favor of lesser charges that adequate funds were freed up and trial began. By this time, several witnesses had died or otherwise become unavailable. Boyer was convicted of second degree murder and armed robbery and sentenced to life imprisonment without parole. He now argues that Louisiana’s failure to fund his lawyers in the years it spent pursuing the death penalty led to a violation of his Sixth Amendment right to a speedy trial–the remedy for which requires a reversal of his murder conviction.

The Supreme Court outlined in 1972’s Barker v. Wingo a four-factor balancing test for determining whether a Sixth Amendment infringement has taken place: (1) the length of delay, (2) the reason for the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice that the defendant suffered due to the delay. Depending on the facts of the case, each factor is weighed against either the defendant or the state. In 2009’s Vermont v. Brillon, the Court found that a “systemic breakdown” in the public defender system leading to a delay of trial could be counted against the state. The main question in Boyer is whether a five-year failure to provide funding for the indigent’s appointed defense should similarly be held against the state. A “Yes” to that question doesn’t automatically mean that Boyer’s speedy trial rights were violated, but it does help his case in the Barker balancing.

Unsurprisingly, Louisiana argues that the delay in funding should not be held against the state so long as the state did not purposely withhold the money to avoid trial. Though Louisiana’s prosecutorial offices routinely received surpluses (of hundreds of thousands of dollars) to try cases in the same period of time that Boyer awaited trial from prison, the state maintains that the lack of funds for his defense resulted from other factors beyond its control, like Hurricane Katrina cleanup and the available monies being used up in other capital cases. Louisiana insists that it already dealt Boyer a more-than-fair hand by even bothering to appoint two counsel for him, which was enough to safeguard Boyer’s Constitutional rights.

At Monday’s lively oral argument, the Justices split over whether the delay was actually attributable to Boyer or to the state. Justice Scalia agreed with Louisiana that the state had already been very “generous” in naming multiple Ivy League-educated attorneys for Boyer (which is where Justice Thomas stepped in with his now-infamous four-word joke concerning their competence). Rather than putting the onus on Louisiana to fund the two lawyers required under its own state procedure, Scalia postulated that had Boyer truly cared about getting a speedy trial, he would have waived his state right to two attorneys and proceeded with just the one lawyer required by the federal Sixth Amendment. Justice Ginsburg questioned whether Boyer, a man with an eighth-grade education, knew that this option was available to him. Justice Kagan pointed out that even Louisiana seemed unaware that Boyer could move forward with only one attorney, since it had previously explained the delay by saying it could not “ethically or legally bring [Boyer] to trial” because he had been “without properly funded counsel for so long.” Meanwhile, Justice Sotomayor, who has worked as a prosecutor in New York, repeatedly pressed Louisiana to explain how a state’s choice to fund prosecutors’ investigations (or anything else) over capital defendants’ lawyers could not be attributed to the state.

The Justices also sparred over the scope of the question to be decided. In addition to laying out the four-factor balancing test, Barker v. Wingo holds that speedy trial challenges must be considered on a case-by-case basis, which allows for a far more fact-intensive inquiry than the Supreme Court is used to handling. Several members of the Court, led by Justice Breyer, mentioned repeatedly that the Court’s only job is to consider the general question of whether the failure to fund counsel should weigh against the state in a speedy trial challenge. (If so, they are content to send the case back down to the Louisiana courts for the case-specific reconsideration of whether such a violation occurred.)  Justice Scalia, however, believes the Supreme Court should both answer the general question AND perform the case-specific four-factor reanalysis for Boyer. To that end, Scalia spent a significant part of the oral argument focusing not only on the reason for the delay but on whether Boyer and his legal team properly brought up the speedy trial issue in the lower courts, whether he actually suffered prejudice due to the delay, and whether a reversal of his murder conviction would still leave him with a 99-year concurrent sentence for his armed robbery conviction.

If the oral argument is any indication, Justices Alito, Ginsburg, Sotomayor and Kagan agree with Breyer’s general reading of the question presented. These Justices also seem receptive to the idea that the lack of indigent defense funding is attributable to the state. This would constitute the five-Justice majority needed to remand the case to the state court for re-analysis.  It’s possible that Boyer could still lose his battle there–notwithstanding a SCOTUS ruling that the failure to fund should be weighed against Louisiana, Louisiana could still win the overall Barker balancing back in the lower court. But even if this happens, the Supreme Court will have (at the very least) sent a clear message to the states that if they keep shunting indigent defendants to the back of the line, they will be held responsible for such decisions.

The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)
The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)

As for Clarence Thomas’ thoughts on the fundamental questions of the case: who really knows? He hasn’t asked a substantive question at oral argument since 2006, and he certainly didn’t start on Monday. (I’m inclined to agree with Tom Goldstein of SCOTUSblog and Andrew Cohen of The Atlantic when they say the hoopla over the joke was a case of much ado about nothing.) Given the issues at stake, it’s too bad that Justice Thomas’ offhand remark ended up overshadowing the interesting points coming from both sides.*  The depressing truth about death penalty cases is that they take an extraordinary amount of effort and resources to defend–money and time must be spent for thorough investigation and expert witnesses, for both the trial and the sentencing phases–and as Justice Sotomayor pointed out, only a very small group of lawyers in this country are even qualified to argue death penalty cases. A defendant with money may be able to hire such a lawyer and pay for the investigation, but the indigent’s court-appointed counsel cannot be expected to pay such expenses out of pocket. And while it’s not unforeseeable that very cash-strapped states acting in good faith may simply not have enough money some years to try or defend all their capital cases, it is brutally unfair to make the indigent defendant bear the brunt of those funding decisions by waiting out that time in prison.

In other words, Louisiana for over five long years subjected an untried Jonathan Boyer to a philosophy of “guilty before proven guilty,” a situation he was powerless to avoid because he had no means of his own to mount a defense and no authority to change the state’s funding decisions. Regardless of Boyer’s culpability for the murder of Bradlee Marsh, the Supreme Court needs to remember that the Constitution guarantees a speedy trial for those found innocent and those ultimately found guilty, for those who can afford to defend themselves and those who cannot. Louisiana needs to be held accountable for its choice.

*I do wonder what Justice Thomas himself thinks of all the media attention surrounding his comment, particularly when he opined publicly in April 2012 that his fellow Justices should listen more and refrain from interrupting lawyers so frequently during oral argument.

Robert Bork’s America

The 85-year-old former judge died today, and Jeffrey Toobin — breaking from punditocratic tradition — went for the jugular:

Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along…

It was said, in later years, that Bork was “borked,” which came to mean treated unfairly in the confirmation process. This is not so. Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government.”

Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”

Supreme Court to Hear Prop 8, DOMA case

Photo by: J. Emilio Flores for the New York Times
Photo by: J. Emilio Flores for the New York Times

SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.

Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

More coverage of this development can be found here, here, here and here.

Site of the day

Check out the Sunlight Foundation. It’s an incredible site filled with tons of great tools — including online charts, graphs, widgets, mobile apps, etc. — for tracking the influence of money on politics. This is one big step in counteracting the influence of unlimited campaign dollars unleashed by the Supreme Court’s Citizens United v. Federal Election Commission ruling in 2010.

Good stuff.