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.