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The O'Connor Precedents


As noted in yesterday’s Blog Scan, there is much discussion about which of the cases where Justice O’Connor cast the deciding vote might be overruled following her replacement by a more “conservative” justice. I put “conservative” in quotes because such labels are an oversimplification, as described here.

The following list is the criminal and related cases from Marty Lederman’s most recent post, with some comments as to which ones really are candidates for overruling by justices who are “conservative” not only in their ideological leanings but also in their respect for precedent.

Lederman describes his list as “cases decided in the decade between 1995 and 2005 in which Justice O'Connor's was the decisive vote or opinion, and as to which a more conservative Justice such as Justice Alito might well vote to overrule the governing precedent (assuming, in each case, that Chief Justice Roberts would vote in accord with Chief Justice Rehnquist).” The description following each case is Lederman’s, and the paragraph that follows is my comment.

Rompilla v. Beard, 545 U.S. 374 (2005) -- standard of reasonable competence that Sixth Amendment requires on the part of defense counsel.

The first is the easiest. This is a prime overruling target. Then-Judge Alito wrote the Third Circuit opinion that the Supreme Court reversed 5-4. Justice Kennedy wrote the dissent. Assuming the Rehnquist-Roberts congruence, there are five justices who believe the case was wrongly decided. The case also meets the requirements for overruling. It is constitutional, not statutory, and cannot be fixed by legislation. It is not a sleeping dog that can be allowed to lie, or an issue more important settled than settled right. As the dissent says, “the majority imposes on defense counsel a rigid requirement to review all documents in what it calls the ‘case file’ of any prior conviction that the prosecution might rely on at trial.” Justice O’Connor’s concurrence denies that it imposes such a requirement, but it is being cited for exactly that by defense lawyers telling legislatures they need large additional appropriations. It is a continuing, heavy constitutional tax on capital punishment and needs to be gotten rid of ASAP.

Smith v. Massachusetts, 543 U.S. 462 (2005) -- double jeopardy

Not likely. This case cut across the usual ideological lines, illustrating the shallowness of the “liberal” and “conservative” labels. Justice Scalia wrote the defendant-friendly opinion, joined by Justice Thomas + 3. Justice Ginsburg wrote the dissent, joined by Justice Breyer + 2. The case involves a quirky issue of mid-trial motions for acquittal. It’s not a big enough deal to overrule.

Small v. United States, 544 U.S. 385 (2005) - felon firearm possession ban doesn't cover foreign convictions

Highly unlikely. This is statutory interpretation. If it needs to be fixed, Congress can fix it.

Groh v. Ramirez, 540 U.S. 551 (2004) -- Fourth Amendment sufficiency of non-particularized search warrant

Unlikely. This case involved a search warrant with no description of the property to be seized at all. Immunizing such an easily avoided violation of the plain text of the Fourth Amendment will not be high on anyone’s priority list.

Stogner v. California, 539 U.S. 607 (2003) -- ex post facto clause as applied to changes in statutes of limitations

Unlikely. The repeal of statutes of limitation for old child abuse cases was probably a one-time event. I doubt this issue will reach the high court again in the foreseeable future.

Alabama v. Shelton, 535 U.S. 654 (2002) -- right to counsel

Unlikely. This case extended the right to appointed counsel to cases where the defendant received a suspended jail sentence and probation. Once states adjust their appointment practices to conform to a decision such as this, there is rarely any push to roll it back.

Kelly v. South Carolina, 534 U.S. 246 (2002) -- capital defendant's due process right to inform jury of his parole ineligibility

Unlikely. This isn’t a big deal from the prosecution side of things, and it is one of those rules where stability is more important than which way the decision goes.

Rogers v. Tennessee, 532 U.S. 451 (2001) -- "judicial" ex post facto

Lederman missed the boat, IMHO, in classifying this case as one where the more “conservative” position is to overrule. Justice O’Connor’s opinion for the Court affirmed the conviction. The more “conservative” Justices Scalia and Thomas voted for the defendant, to reverse. The case involves a court changing an obsolete case-law rule that had favored the defendant. Whatever they think of the merits, I doubt either Justice Alito or Chief Justice Roberts would consider this a high enough priority to overrule a precedent.

Schlup v. Delo, 513 U.S. 298 (1995) -- habeas corpus, actual innocence claims

Not likely. This case was a win for the prosecution side on the main issue. The standard for using an actual innocence claim as a gateway to hear a defaulted claim is high enough to screen out the vast majority of cases. The court unanimously rejected the low standard proposed by the defense, dividing only on whether to use the most strict standard or a somewhat modified version. There is no push to lower the standard the Court adopted. (The “innocent” Mr. Schlup, BTW, subsequently pleaded guilty and testified under oath under questioning by his own lawyer that he really did it.)

Lederman’s list is limited to the last ten years, and so it omits a biggy. Penry v. Lynaugh, 492 U.S. 302 (1989) gave an expansive interpretation to Lockett v. Ohio, 438 U.S. 586 (1978), effectively overruling Jurek v. Texas, 428 U.S. 262 (1976). There are almost certainly five justices who think Penry was wrongly decided. Are there five to overrule? Justice Kennedy is hard to read on this issue. Compare Johnson v. Texas, 509 U.S. 350 (1993) with Smith v. Texas, No. 05-11304 (2007).

So, are the precedents where Justice O'Connor cast the deciding vote for the "liberal" side in danger of wholesale overruling? Not in criminal law. A few cases need to be, and perhaps will be, overruled, but nothing out of the ordinary.


"heavy constitutional tax"--great turn of a phrase.

Isn't Rompilla's mechanical rule contrary to the spirit of Strickland?

Oops. I should have credited the source for that phrase: Blakely v. Washington, 542 U.S. 296, 319 (2004) (O'Connor, J., dissenting).

Well, I was none the wiser . . . . the only one I can remember off the top of my head is Scalia's "Sorry about that".

Marty Lederman comments by email:

"Thanks, Kent. I imagine you're right on many of the criminal cases; they're certainly not as ripe for reversal as many of the other constitutional cases. And absolutely right about Penry!"

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