The Questions Presented in Wood v. Allen, argued today, have to do with the requirements of the Antiterrorism and Effective Death Penalty Act (AEDPA) on federal courts' treatment of state court findings of fact. Yet for the first three pages of his argument, counsel for Wood didn't say a word about the fact findings but instead talked about the application of the Strickland v. Washington ineffective assistance of counsel standard.
The Justices weren't too pleased about the ruse of getting certiorari on one question and then arguing another question. Justice Alito leads off on page 5. Then the Chief chimes in. Then Justice Sotomayor asks it again on pages 8-9. So does Justice Ginsburg on page 14. When counsel returns for rebuttal, the Chief has counted quotations of the statute, 28 U.S.C. ยง2254, and notes that the "application" prong of the statute ((d)(1)) is quoted 11 times in the body of the petition but the "fact" prong ((d)(2)) is not quoted at all. "Now, I think there's a huge difference between (d)(1) and (d)(2). We've been talking about (d)(2) in a case that was only brought under (d)(1)."
It will be interesting to see how they deal with this. Justices who believe that a death-sentenced inmate has a solid claim on the "application" point (as Justice Ginsburg apparently does, p. 14) may be willing to waive the question-smuggling rule, as the Court has discretion to do. However, several of the Justices, probably a majority, are much less impressed with the claim and may deliver a rebuke about misstating the question.
There is also a nugget in the argument for writers of Supreme Court briefs. When the opinion below is both published in the regular reports (e.g., the F. 3d) and reprinted in the appendix to the certiorari petition, should you cite to particular points in the decision with the page in the F. 3d or the page in the appendix?
Apparently the F.3d (or other official or quasi-official report). On pp. 11-12, counsel cites to a point in the App. to Pet. for Cert. Justice Kennedy asks for the F.3d page. Counsel doesn't have it. It's a small point, perhaps, but just one more thing to go wrong in what is already a high stress situation.
This is one more reason for numbering the paragraphs of opinions, as they do in avant-garde jurisdictions such as Mississippi.
The Justices weren't too pleased about the ruse of getting certiorari on one question and then arguing another question. Justice Alito leads off on page 5. Then the Chief chimes in. Then Justice Sotomayor asks it again on pages 8-9. So does Justice Ginsburg on page 14. When counsel returns for rebuttal, the Chief has counted quotations of the statute, 28 U.S.C. ยง2254, and notes that the "application" prong of the statute ((d)(1)) is quoted 11 times in the body of the petition but the "fact" prong ((d)(2)) is not quoted at all. "Now, I think there's a huge difference between (d)(1) and (d)(2). We've been talking about (d)(2) in a case that was only brought under (d)(1)."
It will be interesting to see how they deal with this. Justices who believe that a death-sentenced inmate has a solid claim on the "application" point (as Justice Ginsburg apparently does, p. 14) may be willing to waive the question-smuggling rule, as the Court has discretion to do. However, several of the Justices, probably a majority, are much less impressed with the claim and may deliver a rebuke about misstating the question.
There is also a nugget in the argument for writers of Supreme Court briefs. When the opinion below is both published in the regular reports (e.g., the F. 3d) and reprinted in the appendix to the certiorari petition, should you cite to particular points in the decision with the page in the F. 3d or the page in the appendix?
Apparently the F.3d (or other official or quasi-official report). On pp. 11-12, counsel cites to a point in the App. to Pet. for Cert. Justice Kennedy asks for the F.3d page. Counsel doesn't have it. It's a small point, perhaps, but just one more thing to go wrong in what is already a high stress situation.
This is one more reason for numbering the paragraphs of opinions, as they do in avant-garde jurisdictions such as Mississippi.
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