Comparison between Texas's Court of Criminal Appeals and SCOTUS as to Handling Last-Minute Death Appeals

If, God forbid, you ever find yourself working on a capital appeal, be aware of the practical details of filing last minute papers. Texas Court of Criminal Appeals Presiding Judge Sharon Keller famously let her court's office close so that a last minute appeal would not be accepted. You can search this blog for the struggle between Presiding Judge Keller (known as Sharon Killer to the death penalty defense bar) and those opposed to the death penalty, including, but not limited to, my old high school debate adversary University of Houston law professor David Dow. David Oscar Markus of the Southern District of Florida blog drew my attention to a New York Times article about the Supreme Court of the United States's "death clerk."

Some Oddities of Stare Decisis or Issue Preclusion

Of necessity, stare decisis or issue preclusion, is weaker in a final appellate court than in an intermediate appellate court. A final appellate court is one that which there is no higher. In the federal system, it's the Supreme Court of the United States. In Texas, as to Texas civil law, it's the Supreme Court of Texas; as to Texas criminal law, it's the Texas Court of Criminal Appeals. Intermediate appellate courts are the others.
It is not unreasonable to think that a legal rule adopted dozens or hundreds or years earlier, might become outmoded as technological or economic circumstances changes. While higher courts might change outmoded rules for the lower courts. The only court that can overrule the bad rule of the highest court of a system is that highest court.
A common law court can overrule its own rules, but most of them would probably leave changing important old rules to the higher courts.
An appellate court is generally also more open to changing rules on constitutional matters than on matters interpreting legislation, which may be counter intuitive. This is because as to constitutional interpretation only the appeals court can change its interpretation of the constitution. As to legislative interpretation, the legislature can change a statute. By comparison, changing the constitution is a lot more work.

No Life without Parole for Offenders Younger than 18

To give good reader service and to keep you from having to go all over the net to keep up with what you read here, SCOTUS, in Miller v. Alabama, as might reasonably have been expected, ruled that life without parole is not a constitutional punishment for a person who commits the offense before attaining the age of 18. Thanks to the blog of the Austin American-Statesman for reminding me of the case and pointing me to the links, etc. Miller v. Alabama, Nos. 10-9646, 10-9647 (U.S. June 25, 2012).

Chief Justice Roberts May Be Indirectly Be Giving Away Some of His Thinking

For those of you who may have been or may be perplexed by Chief Justice Roberts's alliance with the left wing of his court, this blog post from the Wall Street Journal is damned interesting. How a 1927 Movie May Have Revealed the Roberts Defection

The U.S. Supremes Are Different.

In some ways the Supreme Court of the United States is a model. The clerks-- the people who really do the great bulk of the work-- are brilliant. The court can get away with things that no other court can; there is no court above them. It is a court that takes very few of its cases except at its own discretion. It is, for these reasons, the most politicized court. The rest of us have to do what a majority of them say, so they are important. A wonderful way to keep track of them as they finish up their term and get ready to take their three-month hiatus is a round table at Slate Magazine featuring Walter Dellinger, Dahlia Lithwick, and Justice Richard A. Posner, which I commend to your attention.

A Book that Tells You how It Was Done

The Houston Chronicle reviewed Flagrant Conduct: The Story of Lawrence v. Texas by University of Minnesota Law School professor Dale Carpenter. It seems like a useful study of a changing of an interpretation of the United States Constitution by the U.S. Supreme Court.
Some observations:
1. It is common that the facts of a case like this are not very important. It is entirely possible that the defendants in the case were not engaging in sex at all.
2. A big appellate case usually doesn't develop randomly out of the slush pile. Lambda Legal Defense Fund had been looking for a case like this for years.
3. The U.S. Supremes worried little or not at all about reversing the precedent of Bowers v. Hardwick. Appellate justices wax eloquent on the importance of issue preclusion, but "five votes can do anything" at the Supreme Court.
4. State appellate justices can take their careers in their hands when they decide a case. This case almost ended the career of Texas Fourteenth Court of Appeals Justice John Anderson.
This book would bear comparison to Gideon's Trumpet by Anthony Lewis.

United States Supreme Court Establishes Protections for Child Support Civil Contemnors

In this child support collection case, Daddy--without a lawyer--was sued by Mamma--without a lawyer. In a civil contempt hearing, the judge found Daddy in willful contempt and sentenced him to 12 months in prison without making any finding as to his ability to pay or indicating on the contempt order form whether he was able to make support payments. After he served his sentence, the South Carolina Supreme Court rejected his claim to a right to counsel.
The United States Supreme Court has held that the Sixth Amendment to the United States Constitution requires that an indigent defendant get an appointed lawyer for a criminal case in which the defendant is at risk of incarceration. The Sixth Amendment does not govern civil cases.
The Due Process Clause requires that an alleged civil contemnor receive:

• adequate notice of the importance of the ability to pay in order to be held in civil contempt;
• fair opportunity to present relevant information;
• fair opportunity to dispute relevant information; and
• court findings.

The Supreme Court of the United States

The Supreme Court of the United States is the highest court in America. It has nine justices appointed on good behavior by the President and confirmed by the Senate. It has original jurisdiction over disputes involving 
ambassadors, other public ministers and consuls, and those in which a state shall be a party. It has appellate jurisdiction over the decisions of the United States Courts of Appeals and the highest courts of each state. In these appellate cases, the Supremes only hear those that four of their number agree to hear. It should be no surprise that those justices have an idea, at that point, how they think a case should turn out. It is not uncommon that in SCOTUS very often one side is fighting from the very high ground, while the other has very little chance of victory.
It is very difficult to get a case heard by the Supreme Court. Thousands apply, but only about 150 are taken up. The mission of the Supreme Court is less to correct errors in individual cases, than it is to resolve differences in legal interpretation made by the various federal courts of appeals and highest state courts. Note also that the U.S. Supreme Court has no authority to change law which is pure state law; they only have the authority to change federal law (State courts are, to the extent federal law impinges on their decisions, bound by the decisions of the United States Supreme Court.).
Pretty much since the Nixon administration-- it also happened at the beginning of FDR's administration-- the Supreme Court has been divided between a conservative wing and a left wing.  Presently, the conservatives are Chief Justice of the United States (not Chief Justice of the Supreme Court)  John G. Roberts, Jr., Justices Antonin Scalia, Clarence Thomas, and Samuel Anthony Alito, Jr. Justice Anthony Kennedy generally votes with the conservatives, but is generally the most left of the conservative justices and so is the swing vote on the Court. To the left are Justices Ruth Bader Ginsberg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. Notice that the death or retirement of a single justice could well swing the balance of power in the court to the left.

No, It's Not Just Your Imagination

Opinions of the Supreme Court of the United States are getting longer.

A Press Release from the Supreme Court of the United States about Oral Argument Recordings

Beginning with October Term 2010, the audio recordings of all oral arguments heard by the Supreme Court of the United States will be available free to the public on the Court’s Web site, www.supremecourt.gov, at the end of each argument week.  The audio recordings will be posted on Fridays after Conference.

The public may either download the audio files or listen to the recordings on the Court’s Web site.  The MP3 files of the audio recordings may be accessed by clicking on the “Oral Arguments” prompt on the home page, and selecting “Argument Audio.”  The audio recordings will be listed by case name, docket number, and the date of oral argument.  The recordings will also be accessible by clicking on “What’s New” on the site’s home page.

The Court began audio recording oral arguments in 1955.  The recordings are maintained at The National Archives and Records Administration.  Prior to the 2010 Term, the recordings from one Term of Court were not available until the beginning of the next Term.  The Archives will continue to serve as the official repository for the Court’s audio recordings. 

Hat tip to Kent Scheidegger, author of the Crime and Consequences Blog.  Supreme Court Practice

Elena Kagan Is In

She's the 112th justice and the 4th woman.

Pre-Certiorari Amicus Briefs Increasingly Important in Cases SCOTUS Takes

Tony Mauro and Marcia Coyle of the National Law Journal point out the increasing role of pre-certiorari amicus briefs to get argument in the United States Supreme Court.

SCOTUS Oral Argument Analysis

A statistical analysis of oral argument patterns as to SCOTUS justices is here.

Solictor General Practice with the U.S. Supreme Court

A key part of Supreme Court of the United States practice is knowing how to deal with the Solicitor General's office.Supreme Court Practice

SCOTUS Issues More Summary Opinions Than Ever

Tony Mauro, Supreme Court reporter of the National Law Journal, reports that the Supreme Court of the United States issued 12 summary opinions this term-- the term that ended today. Chief Justice Roberts is apparently behind this. Summary dispositions avoid oral argument, which is time-consuming and expensive. Legislators appear to be critical of the high court's reduction of the number of cases it has accepted and resolved over the last few years.
Why should you care? In the past, the best practice for a petitioner for certiorari-- a person trying to get the court to hear a case-- was to minimize or ignore the merits and only argue at that stage why the court should take the case. But now for certain cases-- criminal cases where there is a statute or a strong precedent showing a clear, conspicuous error by the lower court-- a petitioner should show that, because on a summary disposition, that petition may be the only chance.

Inside Baseball or; The Education of Elena Kagan

Linda Greenhouse of the New York Times describes how United States Supreme Court Justices Harry A. Blackmun and Thurgood Marshall-- the latter on the advice of his law clerk Elena Kagan-- caused the court to decide DeShaney v. Winnebago County Social Services Department. The decision that resulted not only set a precedent that they would not have wanted, but a precedent that has stood as a bulwark against any tendency to reconsider this conservative decision.
Remember, if you go to an appellate court that chooses its cases-- that has discretionary jurisdiction-- such as the Supreme Court of the United States, the Texas Supreme Court or the Texas Court of Criminal Appeals, you may be able to forecast that if such a court takes your case, it may not only decide against you, but that its decision against you will become an ironclad precedent against any future client you might try to help. I bet that Justice Kagan will be a lot more sophisticated on this point than Justices Brennan, Thurgood Marshall and Blackmun were.

The Chief Justice, That Centrist, and Also Ninth Circuit, Most Reviewed Not Most Reversed

Supreme Court of the United States statistics have been updated here from SCOTUSWiki (Thanks, folks.).
First surprise: the Chief Justice was in the majority more often than Justice Kennedy; the Chief Justice appears to be working for more agreement between justices. Second surprise: though the Supremes reviewed more decisions from the Ninth Circuit, they reversed a smaller fraction of them than they did of the cases they took from the Second, Fourth, Fifth, Sixth, Seventh and Eleventh Circuits.

The Supreme Court of the United States Is More Likely to Overturn a Ninth Circuit Decision Than Other Circuits'

Savvy appellate lawyers know that final courts like the Supreme Court of the United States and the Supreme Court of Texas and the Court of Criminal Appeals of Texas have some intermediate appellate courts that they are more willing to reverse than others. For the Supreme Court of the United States, the Ninth Circuit is the intermediate court they are most likely to reverse. Ninth Circuit parties unhappy with the result in their cases, especially those whose result would be unpleasing to the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito have a better chance of getting relief than unhappy people from other courts of appeal.
The post explaining why this is not very important as to SCOTUS is the post just before this one.

Generally, Don't Take Your Case to the United States Supreme Court Unless You Have To

7,738 cases were filed in the Supreme Court of the United States in their 2008 term, which begins in October of that year. Out of those, the Court held argument on 87. Of those, they disposed of 83. 74 of those dispositions were by signed opinions, including per curiam opinions signed by no individual justice, and the judgments in cases where the trial is in the Supreme Court. Cases the Supreme Court disposes of may be either affirmed or reversed. That is, a party could go through the whole laboriousness and expense of getting a case into SCOTUS, getting it briefed, arguing it and ending up with an affirmance making the ruling against the party in the party's case the law of United States of America.
So, if you or your client have the expectation that the Supremes are going to right the wrong in your United States Circuit or highest state court case, that expectation is practically always misplaced. Petitions for certiorari to the U.S. Supreme Court should practically always be reserved for situations in which the judgment and law of the case is utterly intolerable for your client or in which delay of finality of the ruling complained of is in your client's interest.
I'm speaking here of a necessary but not sufficient condition for advising a petition for cert. That is, advice to prepare and file a cert. petition should only be given when the legal and factual grounds exist. I hope to write more about those legal grounds in later blog posts. Be aware, and make sure that your client is aware, that more than 98 out of every 100 filings are never taken up at all.

SCOTUS Nomination Diversity

The president has not nominated anyone to the Supreme Court of the United States who was not an Ivy League female, unmarried and childless, from New York City, New York, who studied in Princeton's history department.
Hat tip to Mises Economics Blog.