January at the Court: In Plain English

By Lisa Tucker
on Jan 21, 2011 at 7:09 am

The last few weeks have been busy ones at the Court, what with Justice Kagan’s first opinion, vocal dissents from the denial of cert. from Justices Scalia and Thomas, and oral arguments in some key cases, just to name a few highlights.  

Let’s start with a recurring theme of the last few weeks:  The Court and women.  Several commentators have noted that the Court looks and feels somewhat different with three female Justices; in a published interview, even Justice O’Connor commented that her first visit to the Court with three women on the bench felt “pretty amazing.”   According to Justice O’Connor, “[I]n terms of having the American people look at the court and think of it as being fair and appropriate for our nation, it helps to have women, plural, on the court.”  But what about female advocates?  Are they well represented at the Court too?  Not really, as men appear as lawyers at the Court five times more often than women, perhaps – according to some women who argue regularly there – because the highly rigorous job can be hard to combine with parenthood, for example.  Still, more and more women are obtaining prestigious positions in the law, a trend that may lead to more female Supreme Court specialists and even more female Justices.

And, speaking of female Justices:  Justice Kagan, the newest Justice, handed down her first opinion last week in Ransom v. FIA Card Services.  As is typical for a Justice’s first opinion, the case was not especially controversial; however, although first opinions are often unanimous, Justice Scalia dissented here, perhaps signaling a long future of disagreement between the two Justices at opposite ends of the ideological spectrum?  With many more opinions to come, in both this Term and future Terms, Court watchers will certainly be interested in how this particular relationship develops.

Other opinions have started to come down fast and furious, with several in the last few weeks alone.  Last week, in Mayo Foundation v. United States, the Court held unanimously that medical residents are employees, not students, even though they continue learning while they are employed.  Why was the issue important? Well, if the residents were classified as students, hospitals would not have to pay payroll taxes for them, thereby saving a lot of money. 

On Wednesday, the Court decided three cases, also unanimously (although without Justice Kagan, who did not participate in any of the cases because she had been involved in them in her previous role as the U.S. Solicitor General) .  In NASA v. Nelson, the Court – in an opinion by Justice Alito – held that NASA could constitutionally do background checks on independent government contractors.  Although the Court assumed that there is a right to informational privacy, it still held that questions about a history of counseling, drug treatment, or drug use did not violate any such right because they were reasonable.  Justice Scalia filed a opinion concurring in the judgment – which means that he agreed with the result that the Court reached – but he criticized the notion of informational privacy as having no support in the text of the Constitution; his concurrence was pointed and fiery, in a style that Nina Totenberg of NPR called “[c]lassic Scalia.”

In Harrington v. Richter, the Court reversed a decision of the Ninth Circuit in holding that a criminal defense lawyer was not constitutionally deficient – in other words, he did a good enough job that the constitutional right to counsel was satisfied – when he did not consult blood evidence in forming his trial strategy.   Why?  According to Justice Kennedy, who wrote the majority opinion, because a reasonable lawyer might have declined to consider the blood evidence, even though most lawyers probably would have looked at it closely.  In her concurring opinion, Justice Ginsburg agreed that a good lawyer probably would take the blood evidence into account when deciding on trial strategy.  However, she noted that because the prosecution’s case was extremely strong even without the blood, Richter probably would have been convicted even if his lawyer had taken the evidence into account.

And in Premo v. Moore, the Court unanimously reversed the Ninth Circuit a third time, holding that Randy Moore’s lawyer, who failed to challenge his client’s murder confession, still acted competently.  As I explained after the oral argument here, Moore had accepted a plea bargain and was sentenced accordingly, but later challenged his sentence by saying that his lawyer should have tried to have the confession suppressed.   Because the lawyer failed to do so, Moore argued, he was deprived of his Sixth Amendment right to effective counsel.  Unfortunately for Moore, the Court not only held that his lawyer acted as a reasonable lawyer might, but it noted that he was not prejudiced by the admission of the confession, even if the confession was improperly elicited.

As Ed Whelan noted, the Supreme Court unanimously reversed three decisions by the Ninth Circuit on the same day.  The observation is interesting in that it reveals three common SCOTUS patterns:  reversal of the lower court’s decision, reversal of the Ninth Circuit specifically, and unanimity among the Justices.   Many people do not realize that the Supreme Court reverses far more often than it affirms; in fact, many Court watchers speculate that the Justices consider whether the lower court “got it right” when deciding whether or not to review a case in the first place.  If the lower court was wrong, the theory goes, the Court will want to grant cert. to rectify the situation.  However, even when the Court votes to affirm the lower court, such cases may be regarded as a good use of the Court’s limited resources if they resolve a circuit split – disagreements between the federal courts of appeals – or present an important constitutional issue.

As for the Ninth Circuit, statistics show that it is one of the federal courts of appeals  that is most often reversed.   No one knows exactly why the Ninth Circuit is reversed so often, but some scholars and judges attribute the high reversal rate to the fact that it has more judges than any other federal appellate court, leading to inconsistent rulings and some “outlier” judges, while others chalk it up to a fundamental ideological disagreement between the Ninth Circuit and the Court.

And what about unanimity?  Well, contrary to popular belief, the Justices agree with each other the majority of the time – in about forty-seven percent of the cases last Term, for example – and far more often than they split by a vote of five to four (which occurred in only nineteen percent of last Term’s cases).  Therefore, it is not surprising that all of these cases were unanimous – and it is even less surprising that they were unanimous in reversing the Ninth Circuit.

There are no arguments at the Court next week – or indeed any at all until the end of February.  Because it will likely be a much quieter week at the Court, then, I will use my next Plain English post to review the January arguments.