The United States Supreme Court generated a little interest around here this last week by issuing its opinion in Citizens United v. Federal Election Commission. However, it released a few other opinions last week, as well as hearing oral arguments in a number of cases (the last oral arguments until February 22).
One silver lining of the Citizens United decision may be the increased awareness of liberal activists of the important role the Supreme Court plays in our daily life through the cases it decides to hear and the decisions it reaches. In an effort to encourage that awareness, here is the Supreme Court week in review.
The other opinions of the week were as follows:
Presley v. Georgia: This was a per curiam decision (per curiam decisions are not authored by any particular author, but are simply issued by the court as a whole, although there may be, as here, dissenters; per curiam decisions are usually issued without oral argument). The Sixth Amendment to the Constitution gives a criminal defendant the right to a "speedy and public trial." However, Mr. Presley's uncle was not allowed in the courtroom during jury selection in his nephew's trial for cocaine trafficking. The Supreme Court reversed the resulting conviction on the ground that public trial means public trial, and there was no compelling reason for excluding the defendant's uncle. Not unsurprisingly, Justices Thomas and Scalia dissented on the grounds that the decision should not have been made summarily. Apparently they have some question about whether jury selection actually counts as part of the trial. In any event, in an era of increasing acceptance of star chamber proceedings in the name of anti-terrorism, Presley is a refreshing opinion in support of the notion that the Constitution meant what it said when it ordered that trials be public.
Wellons v. Hall: Another per curiam decision, this one involving a defendant sentenced to death for murder and rape. It turned out, however, that there were unreported conversations between the jury and the judge without the defense attorney present, that the jurors and the bailiff planned a post-trial reunion, and that either during or immediately after the penalty phase, jurors gave the judge chocolates shaped like male genitalia, and gave the bailiff chocolates shaped like female breasts. (You can't make this stuff up). Mr. Wellons, who learned of these events after his trial, tried to raise the issue on appeal, but was thwarted by the lack of record. He then tried to raise it in a writ of habeas corpus, on which testimony about this obvious misconduct could have been been taken, but was told by the courts that he had already lost the issue on appeal and thus could not raise it again. This decision makes it clear that the lower Federal courts were wrong on this issue, and that Mr. Wellons was entitled to pursue habeas, which would give him the chance for discovery and for an evidentiary hearing on the peculiar behavior of his judge and jury. Chief Justice Roberts, and Justices Scalia, Thomas, and Alito dissented, asserting that the lower federal court decided that Mr. Wellons would lose even if he got his hearing, and thus there was no need for that proceeding. Of course, it is a lot easier to decide the outcome of the hearing when there is no evidence of what, for example, the judge would say when questioned about what he talked about to the jury in the absence of counsel. And after all, if Mr. Wellons got his hearing, evidence might be adduced that indicated that he did not get a fair trial, which would put a crimp in Georgia's efforts to kill him.
Kucana v. Holder: In this case, an essentially unanimous court (Justice Alito filed a separate opinion concurring with the majority opinion signed onto by the other eight Justices) held that the federal courts have jurisdiction to review an immigration court's denial of a motion to reopen removal proceedings (proceedings for the purpose of kicking a foreign national out of the country). Mr. Kucana wanted to present additional evidence in support of his request for asylum. Given the dismal history of immigration judges' lack of fairness and wisdom, especially in regard to asylum requests, this decision is of vital importance to immigrants.
South Carolina v. North Carolina: South Carolina sued North Carolina, seeking a fair division of the Catawba River. This case, however, is just about who has the right to intervene in the litigation. The Court held that Duke Energy and the Catawba River Water Supply Project, both of whom use the river water, could intervene, but the city of Charlotte, North Carolina could not. This case is of limited immediate interest to those who do not live in the area, but the equitable balancing of water rights are of crucial import to all citizens who benefit from the use of a shared water source (which are pretty much all citizens). Thus, the case's clarification of the rules for intervening in a case involving water rights will have an impact on all future water litigation, and hence, indirectly, on all of us.
Wood v. Allen: Were it not for Citizens United, this case would be my choice for travesty of the week, and, unfortunately, Justice Sotomayor wrote the majority opinion. Mr. Wood was sentenced to death for killing his ex-girlfriend. He had three attorneys, but the one in charge of the penalty portion of his trial had been practising for only five months. The attorneys got a psychiatric report on Mr. Woods indicating that he was borderline mentally retarded. Despite that fact, the attorneys did no investigation of the issue, did not interview his special education teachers, did not obtain further psychiatric examinations, and did not put on any evidence of his retardation at trial. In a stunning demonstration of why AEDPA (the Antiterrorism and Effective Death Penalty Act) is so disastrous to the ability of a defendant to seek a remedy in the Federal courts for a denial of a fundamental constitutional right, the majority of the Court held that the Alabama state court was not unreasonable in deciding that Mr. Wood's attorneys made a strategic decision not to investigate his retardation and not a mistake. It also held that Mr. Wood did not present the question of whether that decision was competent, and thus had waived it. Thus, Mr. Wood's death sentence was upheld. The dissenters, Justices Stevens and Kennedy, made the obvious point that the decision not to pursue the only mitigating evidence in the case was so incompetent as to not qualify as a strategic choice, and that thus Mr. Woods was deprived of his fundamental right to prepared counsel and to have the jury and judge deciding whether to kill him know about his mental deficiencies. Essentially, Mr. Woods, barring a miracle, will die, although many others who have committed the same type of crime are not executed, because his inexperienced trial counsel screwed up and because his appellate counsel did not present the right question to the court.
As for the Citizens United decision, there has been so much written about it on this site over the past few days that I hesitate to comment, fearing that I will merely repeat what others have said. I do, however, want to make a couple of points. First, some insight into how Justice Kennedy, the obvious swing vote, came to author the decision may be gained by reading the transcript of the oral argument in the case. Ted Olson, in what is hopefully a good portent for the Proposition 8 litigation, did a brilliant job arguing on behalf of Citizens United, and was well backed up by noted First Amendment lawyer Floyd Abrams. This may be a case in which oral argument was instrumental in making up the mind of at least one undecided Justice. Second, the really dismaying thing about the case (beside the holding itself, of course) is that the Court really reached to decide it in the way that it did. On rehearing, the Government suggested a statutory way to find in favor of Citizens United without overturning prior court decisions. The Court's rejection of that approach in favor of giving corporations free speech rights coextensive with those of individuals represented an unnecessary break with prior precedent - a move so problematic that Chief Justice Roberts felt the need to write a separate concurrence justifying the Court's turning its back on its own precedents. The real fallacy of the majority's decision that it had to overturn its own case law in order to protect the First Amendment is identified by Justice Stevens in his dissent - corporations have always been able to engage in political speech, as long as they did it through regulated political action committees which guarded against the potentially devastating impact of the full economic power of wealthy companies in elections. The final point is that this decision means that the liberal community is going to have to be much smarter about how we communicate with the electorate, including devising creative ways for mass communication with comparatively minimal resources and articulating our positions and the facts supporting them in simple and compelling ways. The truth, beautifully articulated and forcefully presented, may well be the only real weapon we have in the post-Citizens United world.