<< Today's Arguments | Main | News Scan >>

Musladin Argument: Ginsburg Gets It


After reading the transcript of oral argument in Carey v. Musladin, I call for a round of applause for Justice Ruth Bader Ginsburg. Though I often disagree with her, she can be very good when she is right, and she cast decisive fifth votes in Montana v. Egelhoff, 518 U.S. 37 (1996) and Medellin v. Dretke, 544 U.S. 660 (2005). Several of her comments in today's argument are noteworthy.

29:18-22 -- "[T]he California court has as much authority to say what Federal law is as the Ninth Circuit, right? They are on a par. The Ninth Circuit decision in no way binds the Supreme Court of California. Is that so?" This is my personal favorite, as it is a point I have been making for nearly 20 years. This is the reason Congress limited "clearly established Federal law" to Supreme Court precedent in 28 U.S.C. § 2254(d)(1). Federal courts generally, the Ninth Circuit particularly, and Judge Reinhardt especially just can't seem to accept that they have no appellate jurisdiction over state courts and their precedents are no more binding than a decision of a sister state court. Let's hope this makes it into the opinion in no uncertain terms.

pp. 32-33 -- Justice Ginsburg notes that the Supreme Court precedents in the area involved state action -- the trial judge in those cases directed that the defendant be shackled or dressed in jail garb or that extra security guards attend the trial. Former ACLU counsel knows that private action is distinguishable from state action. "That certainly goes beyond where our precedent leaves off. That is, we are dealing with direct impositions by government in a way that poses an unacceptable risk of prejudice to the defendant."

39: 5-9 -- "So in assessing the reasonableness of the California Supreme Court's decision, how could we say Federal law was clearly established when other courts considering our precedent have gone the other way?" Bullseye. CJLF's brief asks the Supreme Court to lay down a clear rule for applying the deference standard.

"This is a case where the clearly established law in this Court's cases consists of only a general principle and specific factual examples, none of which is on point. In such a case, the state court must develop a particularized rule from that principle. Where the particularized rule is consistent with a large body of jurisprudence from other jurisdictions, it is per se not an unreasonable application of the clearly established law. While an 'outlier' decision may sometimes be unreasonable, the mainstream of jurisprudence cannot be."

Recognition of this principle would be a substantial step toward simplifying and streamlining habeas litigation. It makes the present case easy. The state court decision is in the mainstream, and the Ninth Circuit precedent is the outlier. Case over.

A few other notes:

pp. 34-35 -- Justice Scalia notes the First Amendment rights of the spectators. Defense counsel cites Cohen v. California, 403 U.S. 15 (1971), which he mistakenly transports to New Hampshire. Scalia: "But that case cuts against you." Oops. Scalia returns to it at 47:4, referring to a shirt that says "Blip the Draft". Actually, it said ... never mind.

38: 13-20 -- Justice Souter also notes the problem of the weight of authority being the other way. It may not be enough to sway his vote, but it is good that he is aware of it.

This looks like a win for the state, probably a lopsided one.


I don't know much about your background, but what "you have been saying for 20 years" is hardly something that many others have not also been saying (both on the "left" and the "right"). Justice Ginsburg herself has said this before on several occasions, see Arizonans for Official English v. Arizona (unanimous opinion of Ginsburg, J.) (characterizing Judge Reinhardt's implication that state courts are bound by 9th Circuit law as "remarkable"); cf. also Bush v. Gore (Ginsburg, J., dissenting).

Note also Judge Hall's dissent in Sanders v. LaMarque, from the 9th Circuit: "Absent a provision for exclusive federal jurisdiction, the state courts are free to interpret federal law—including the Federal Constitution—differently from this court. See Arizonans for Official English
v. Arizona, 520 U.S. 43, 58 n. 11, 117 S.Ct.
1055, 137 L.Ed.2d 170 (1997) (the Supreme Court, speaking unanimously, called it ‘‘remarkable’’
that our court would imply that state courts are bound by our interpretations
of federal law).

Jon, I did not mean to imply that I have been saying that exclusively. I was simply referring to the numerous briefs and articles making that point over the years. Regrettably, the very cases you cite demonstrate that the point is often missed by federal judges who should know better. The Arizonans for Official English case appears to be the only Supreme Court majority opinion that says this directly, and then only in passing. I would like to see the high court really hammer this point home.

Justices Brennan and Marshall were poster boys for the philosophy that liberals know best when it comes to the death penalty. A passage from Wikipedia on Justice Brennan is illustrative: "Brennan was also less interested in stare decisis or the avoidance of 'absolutist' positions where the death penalty was concerned. Brennan and Thurgood Marshall concluded in Furman v. Georgia that the death penalty was, in all circumstances, unconstitutional, and never accepted the legitimacy of Gregg v. Georgia, which ruled that the death penalty was constitutional three years later. Thereafter, Brennan and Marshall took turns, joined by the other, in mechanically issuing a dissent in every denial of certiorari in a capital case, and from every decision in a case in which the court did take which failed to vacate a sentence of death."
Aside from whether this brand of judicial decisionmaking is consistent with the ideal of governance by law and not man, it is reflective of a notion that the highest court of a state is a gang of thugs who uphold any death sentence simply to satisfy a bloodthirsty populace, and thus guarantee favorable votes for their next election contest.
A lifetime appointed federal appellate judge, ascribing to the Brennan school of death penalty jurisprudence, doesn't give two hoots about what state judges have to say regarding the facts and the law. Instead of exercising their unfettered power with the integrity of Justices Brennan and Marshall by boldly proclaiming they are the law, they are all to willing to treat the highest court of a state with derision, at least when it comes to affirmance by a state court of a death sentence.

It would be nice if the Supreme Court hammers the obvious point that state courts are not bound by federal circuit courts' interpretation of federal law. However, the Supreme Court has repeatedly reversed the Ninth Circuit in habeas cases, and the messages conveyed by the repeated reversals have not been received by some recalcitrant Ninth Circuit judges.

Ultimately, the Supreme Court is responsible for this state of affairs, and it is no answer, in my opinion, to say that the Supreme Court has reversed a bunch of Ninth Circuit cases--since there are many incorrect ones that have gone undisturbed (e.g., Chaker v. Crogan). The states in the Ninth Circuit have a right to expect that AEDPA be followed by federal courts. If that means that the Supreme Court has to tighten a leash that has been tightened, that's what it means. Just yesterday, a Ninth Circuit decision showed how much calibration some of these judges need:


On an unrelated note, it seems Justice O'Connor will be sitting on some Ninth Circuit panels (one of which is a habeas case).

Leave a comment

Monthly Archives