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Chicago Daily Law Bulletin
Volume: 153 Issue: 157
August 10, 2007
A STARK New Cabal on the Supreme Court
I don't want to ruin a summer day, but believe it or not the U.S. Supreme Court begins its next term in only seven weeks. So today would be a good time to review what the court did in the area of criminal law during the 2006 term.
But first, let's take a look at some English history.
During King Charles II's Restoration reign in the 17th century, he at one point surrounded himself with a group of five ''Privy Councillors.'' Their names were Clifford, Arlington, Buckingham, Ashley Cooper, and Lauderdale. They were widely regarded as having plotted together to plan the downfall and prosecution of the King's previous advisor, the Earl of Clarendon. Critics of the five pointed out that the first letters of their names formed the acronym ''CABAL.'' Not surprisingly, they have gone down in history as the ''Cabal Ministry.'' Michael Barone, Our First Revolution: The Remarkable British Upheaval That Inspired America's Founding Fathers (2007), p. 54.
The word ''cabal'' predated the ''Cabal Ministry.'' It is derived from the Hebrew word Kabbalah, the mystical interpretation of scripture. A ''cabal'' refers to a secret group of people closely united to promote common goals.
I don't know if the Roberts court also contains a five-person cabal, but court watchers are aware that there is a STARK new reality on the court. ''STARK'' is the acronym for Scalia, Thomas, Alito, Roberts, and Kennedy.
And the statistics are - well, stark.
The Supreme Court decided 72 cases last term. The court decided 24 - fully one-third of its docket - through 5-4 decisions. This is the highest percentage of 5-4 decisions in a term in at least a decade. In 13 of these 24 cases decided 5-4, the five justices in the majority were Antonin Scalia, Clarence Thomas, Samuel A. Alito Jr., John G. Roberts Jr., and Anthony M. Kennedy.
That means that 18 percent of the court's decisions - almost 1 case in 5 - were decided 5-4 with Scalia, Thomas, Alito, Roberts, and Kennedy in the majority.
And one more statistic. In all 24 cases decided 5-4, there was one justice who was on the winning side in all 24 cases: Anthony Kennedy.
That means that 33 percent of the court's decisions - exactly one case in three - were decided 5-4 with Kennedy casting the deciding vote.
What did this mean for the court's criminal decisions? It usually meant that as Kennedy voted, so went the court. And this resulted in a decidedly mixed bag of outcomes. Let's focus only on the court's death penalty cases.
On one day alone - last April 25 - the court found in favor of three defendants who had been given the death penalty in Texas. Each case found some kind of a problem with the jury instructions at the penalty phase. Each case was decided 5-4. And in each case Kennedy parted company with Scalia, Thomas, Alito, and Roberts, thus turning those four into dissenters. Smith v. Texas, 127 S.Ct. 1682 (2007); Abdul-Kabir v. Quarterman, 127 S.Ct. 1654 (2007); Brewer v. Quarterman, 127 S.Ct. 1706 (2007). Again on the last day of the term, Kennedy found in favor of another Texas death row prisoner in another 5-4 decision in which Scalia, Thomas, Alito, and Roberts again dissented. Panetti v. Quarterman, 127 S.Ct. 2842 (2007) (in considering whether defendant was competent to be executed, state court did not properly consider whether he had a rational understanding of the state's reasons for the execution).
On the other hand, the court upheld the imposition of the death penalty in a California case, holding that the jury instruction at the penalty phase was capacious enough to allow the jury to consider ''forward-looking evidence,'' such as the likelihood of defendant's good conduct in any future imprisonment. Ayers v. Belmontes, 127 S.Ct. 469 (2006). The lineup of justices for and against the death penalty was identical to the lineup in the four cases in the previous paragraph, with one exception: Kennedy switched to the prosecution's side, thus giving the government a 5-4 victory.
Or take a look at yet another death penalty case, this time out of Washington. Uttecht v. Brown, 127 S.Ct. 2218 (2007). The 9th U.S Circuit Court of Appeals had reversed the imposition of the death penalty on the grounds that the removal of a juror for his views on the death penalty violated Witherspoon v. Illinois, 391 U.S. 510 (1968). The Supreme Court reversed, agreeing with the prosecution that the juror had been properly removed. As in the previous five cases, the lineup of eight of the justices was identical. But Kennedy went for the prosecution, in another 5-4 decision.
Are you beginning to see a pattern?
Then let's look at Lawrence v. Florida, 127 S.Ct. 1079 (2007). The issue was whether the 11th Circuit was correct in finding that Lawrence's habeas corpus petition to review his sentence of death was untimely. Once again, the lineup of eight of the justices was identical to all the other death cases. And once again Kennedy went for the prosecution in another 5-4 decision.
All right, let's see if you're paying attention. Time for a quiz.
Last term the Supreme Court reviewed a death case out of Arizona. Schriro v. Landrigan, 127 S.Ct. 1933 (2007). The issue was whether the defendant received effective assistance of counsel at the penalty phase.
Who won and what was the vote?
Hint: Kennedy voted for the prosecution.
If you predicted that the prosecution won 5-4, with the exact same lineup of justices as in the last three cases, you may have a future in the exciting and lucrative field of constitutional law.
The closest the court came to deciding a death penalty case differently last term was its decision to dismiss a grant of certiorari as improvidently granted. Roper v. Weaver, 127 S.Ct. 2002. Missouri had asked the court to review a decision of the 8th Circuit that set aside a capital sentence on the grounds that the prosecutor's argument was unfairly inflammatory. Scalia, Thomas, and Alito continued their perfect record of holding for the prosecution in every death penalty case last term. But Kennedy and Roberts moved to the defense side in a 6-3 per curiam decision to dismiss.
These results, of course, are what drive the public crazy about the Supreme Court. We currently have a court where for the first time in American history each justice has come directly from a judgeship on the U.S. Court of Appeals. Eight out of the nine attended either Harvard or Yale Law School. All were sold to the Senate and the American public as ''non-activists'' who would follow the letter of the law.
The result? We have two groups of four justices apiece whose legal views are separated by a chasm about as wide as the gap between Tito and Robert Jackson; and one justice who decides every close case. We also have the largest number of 5-4 decisions in a decade. And a new Pew Research Center survey that has found that the number of Americans who view the court favorably dropped from 72 percent in January to 57 percent in July - the lowest approval rating for the court in two years.
Look, you and I know that - despite what nominees say at Senate confirmation hearings - whether or not they belong to the Federalist Society will reveal more about their future voting records than whether they have memorized the Federalist Papers. For empirical evidence on this point, take a look at Ward Farnsworth's recent study of voting patterns of Supreme Court justices in two kinds of criminal cases: those raising constitutional issues and those raising nonconstitutional issues, such as statutory construction. He posited that there should be no necessary connection between a justice's decisions in these two types of cases. Instead, he found an amazing congruence: justices tended to be either pro-prosecution or pro-defense regardless of the type of issue in the criminal case. He credited this result to what he called a justice's ''priors.'' Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, 104 Mich. L. Rev. 67 (2005).
So in death cases - as well as one-third of all the cases on last term's docket - it pretty much came down to one question: how would Justice Kennedy vote?
Fortunately, Justice Kennedy recently provided us with this description of how he works: ''You know, all of us have an instinctive judgment that we make. You meet a person, you say, 'I trust this person. I don't trust this person.' ... And judges do the same thing.... But, after you make a judgment, you then must formulate the reason for your judgment into a verbal phrase, into a verbal formula. And then you have to see if that makes sense, if it's logical, if it's fair, if it accords with the law, if it accords with the Constitution, if it accords with your own sense of ethics and morality.'' Jeffrey Rosen, ''The Arrogance of Justice Anthony Kennedy,'' The New Republic (June 18).
Feel better?
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