The Oyez Project at Chicago-Kent has posted the argument audio and transcripts for the first week of OT2012.
The first week of audio includes:
At 10 a.m. Tuesday, the Supreme Court will begin hearing two cases — for a total of eighty minutes – on issues surrounding claims of incompetency by individuals convicted of state crimes, and the effect such claims may have on federal court review of their cases. In the first case, Ohio’s state solicitor general, Alexandra T. Schimmer, will represent state officials, and Scott Michelman of the Public Citizen Litigation Group in Washington, D.C., will represent the prisoner, Sean Carter. In the second case, the U.S. government will have ten minutes in the middle of the argument, largely to support the state officials in the cases. Speaking for the government will be Ann O’Connell, an assistant to the U.S. Solicitor General. Representing the state of Arizona in the second case will be its attorney general, Thomas C. Horne. Speaking for the prisoner, Ernest Valencia Gonzales, will be an assistant federal public defender, Leticia Marquez, of Tucson.
————————-
Background
Individuals accused of crimes have a constitutional right to a lawyer — and a free one if they cannot afford that on their own — at all significant stages of their cases, up to the point of conviction. That is true whether they are charged in state or federal court. Whether they have a similar right once they begin appeals to challenge their conviction or sentence is less certain. One thing, though, is clear: if a state prisoner uses up all appeal rights in state courts, and starts a challenge in federal habeas court, there is no guarantee of a right to a lawyer – unless the individual is facing a death sentence. But that is a right under a federal law, not the Sixth Amendment.
A separate question about rights in a federal habeas case arises when the individual, or his lawyer, raises an issue of the convicted person’s mental competence to go forward with the case. The only constitutional right that the Supreme Court has recognized for mentally incompetent individuals convicted of crimes is that they cannot be given the death penalty; that was established in Ford v. Wainwright in 1986. Any “right to competence” thus would have to be found, if at all, in a statute. That is a quite unsettled area of criminal law, and one of the reasons for that uncertainty is that the Supreme Court in 1966 and 1967 issued a decision and orders that have been understood in very different ways by lower courts. The Justices may now be ready to sort that out, along with other habeas law issues, in two new cases — one from Ohio, the other from Arizona.
After battling for years to get a pay raise that they say Congress had once promised them, six federal judges finally won in a specialized federal court on Friday. If the ruling withstands a likely trip to the Supreme Court, those judges – and presumably others – will get annual cost-of-living increases that have been specifically vetoed by Congress. The ten-to-two decision by the Federal Circuit is here.
The Court ruled that, in a 1989 law upon which the judges have been relying, Congress triggered the judges’ right under the Constitution not to have their pay level diminished. The Compensation Clause itself, the decision said, creates “basic expectations and protections” on judges’ pay.
Thus, it concluded, “in the unique context of the 1989 act, the Constitution prevents Congress from abrogating that statute’s precise and definite commitment to automatic yearly cost of living adjustments for sitting members of the judiciary.”
In reaching its decision, the Federal Circuit overruled a decision it had reached in 2001 – one that the Supreme Court had refused to disturb in 2002– and it found that it was not bound by a 1980 decision of the Supreme Court. Both of those rulings had gone against judges claiming that they were unconstitutionally denied pay raises.
Monday is a federal holiday; both the Court and the blog will be closed.
On Tuesday at 9:30 a.m., the Court is expected to issue additional orders from its October 5 Conference. (We posted our list of “Petitions to watch” for that Conference earlier this week; Lyle covered the first set of orders from that Conference on Friday afternoon.) Then at 10 a.m. on Tuesday the Court will hear two oral arguments.
The Court will also hear two oral arguments on Wednesday, including in the affirmative action case Fisher v. University of Texas.
On Friday, the Court will meet for its October 12 Conference. Our list of “Petitions to watch” for that Conference will be available soon.
Just as the Supreme Court set off a revolution in criminal sentencing with its 2000 ruling in Apprendi v. New Jersey, on Friday it set the stage for another — tied directly to the Apprendi precedent. The Court agreed to consider overruling one of its own precedents that allowed judges, rather than juries, to rule on facts that would allow more than a minimum sentence to be imposed. Until now, the “Apprendi rule” had only insisted that juries find the facts to raise a sentence beyond a maximum, not a minimum.
At issue is the continuing validity of the 2002 decision in Harris v. United States, in which the Court was widely splintered. The strength of that ruling as a precedent now appears to depend upon whether the Justice who cast the fifth vote to make a majority for the result there – Justice Stephen G. Breyer — has changed his mind. There have been signs that he may have done just that. In any event, there were at least four votes to face the issue anew.
The one facet of this issue that might limit the scope of an overruling of Harris is whether a decision that a jury must find the facts necessary to raise a sentence only applied to an enhancement of a minimum that was mandatory, but not necessarily to any increase in the floor sentence within a range. The Court might have to confront, if it were to cast Harris aside, whether such a ruling would apply across the board to enhanced sentencing, above any floor even if not mandated as the minimum. The new case does involve a mandatory minimum.
UPDATED 1:55 pm.
The Supreme Court on Friday granted review of seven new cases, with decisions to come in the current Term. Among them was a constitutional test — under the rarely interpreted “Privileges and Immunities” Clause — of a state’s power to open its public records to its own citizens, but to deny access to non-residents. The Court also agreed to consider overruling one of its own criminal law precedents — Harris v. United States, a 2002 decision allowing judges to enhance a sentence by finding that a convicted individual had brandished a gun during a crime. In addition, the Court accepted for review a major case on violation of patents on products that are capable of replicating themselves — in this case, seeds for farm crops.
These are the granted cases:
11-796 — Bowman v. Monsanto Co. — the case involving farm seeds that replicate themselves after planting and harvesting
11-1118 – Gunn v. Minton — federal court authority to rule on legal malpractice under state law in a patent case
11-1447 — Koontz v. St Johns River Water Management — “taking” of land if a government refuses to issue a use permit
11-1545 and 11-1547 — Arlington, Texas, v. FCC, and Cable, Telecom. & Tech. v. FCC — grant limited to Question 1 as stated in 11-1545, on whether Chevron deference is due for a federal agency’s ruling on its own jurisdiction; cases consolidated for one hour of argument
11-9335 — Alleyne v. U.S. – will the Court overrule Harris v. United States, under the decision in 2000 in Apprendi v. New Jersey, requiring juries — not judges — to find facts to support enhancing a criminal sentence
11-9935 — Boyer v. Louisiana — grant limited to Question 1, on whether a state’s delay in paying for counsel for an accused in a murder case should count against the state for purposes of the right to a speedy trial
12-17 — McBurney v. Young — non-resident access to state public records and the Privileges and Immunities Clause
In the same week that we celebrate the blog’s tenth anniversary, we have reached a new social-media milestone for us: as of today, the blog now has over fifty thousand followers on Twitter. (If we can just get 12.1 million more, we can catch up with Ashton Kutcher (@aplusk).) We are hoping to continue to improve our presence on social media in the next few months; meanwhile, thanks so much for following us, in whatever medium you do so.
Ira P. Robbins is the Barnard T. Welsh Scholar and Professor of Law and Justice at American University, Washington College of Law. The full version of his article, Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions, can be found on SSRN.
The per curiam opinion is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting development of the law. Per curiams should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality. Opinions containing language that is more expansive, such as when the opinion expounds on the particular facts or law at issue, should be attributed to its author in order to serve as a check on judges’ fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.
Thursday’s coverage of the Court focused primarily on this week’s oral arguments.
The Economist addresses the issues at stake in Kiobel v. Royal Dutch Petroleum, in which the Court is considering whether corporations may be held liable under the Alien Tort Statute for human rights abuses committed outside the United States. The Huffington Post and The Wall Street Journal (subscription required) have additional commentary.
On October 15, the University of Washington School of Law, in coordination with the Gates Public Service Law Program and the UW chapters of the Federalist Society and American Constitutional Law Society, will host a Supreme Court review and preview event. Panelists will include Justice Goodwin Liu of the California Supreme Court, Tony Mauro of the National Law Journal, Eric Schnapper of the University of Washington Law School, Eric Miller of Perkins Coie; Kathryn Watts, the associate dean of the law school, will moderate. General CLE credits are available at no charge. RSVP by October 10.
More Posts: Older Posts
Submit Event