This week in Plain English

By Lisa Tucker
on May 7, 2010 at 6:18 pm

If it seems like the Court has been pretty quiet this week, you’re not imagining things. Court watchers know that May is a peculiar time of year at the Court:  scheduled oral arguments are over, but the Justices are hard at work in their chambers writing the opinions that will decide the cases of the Term.  Because the Court generally plans to issues opinions by the end of June for all of the cases that were argued (this Term, that number is seventy-seven), that means that the next six weeks may seem slow to those of us outside of the Court.  Inside the now-closed front doors (more on that in a minute), there’s undoubtedly a frenzy going on, with draft opinions circulating from chambers to chambers and law clerks (more on them soon as well) drinking an awful lot of coffee – they still have forty-two opinions to complete and announce (not including concurrences and dissents).

This week the Court issued opinions in two cases.  Both of these cases, unlike some others we have discussed in Plain English, are pretty dense and narrow in scope.  Still, every Term the Court hears important cases in drier areas of the law.  These cases, like the more entertaining ones, have broad impact in many important ways.

Take Hui v. Castaneda.  In that case, an individual who had been detained by immigration authorities sought medical treatment from employees of the U.S. Public Health Service for a serious lesion on his penis.  Although a physician’s assistant and three outside specialists recommended that he receive a biopsy as soon as possible, the petitioners in the case – both USPHS employees – refused to permit the biopsy.  When he was finally released from detention, he learned from another doctor that the lesion was cancerous, and he died a year later.  His estate sued under two legal theories:  first, that PHS had ignored his medical needs and thereby violated his rights under a federal law called the Federal Tort Claims Act (FTCA); and second, that the PHS doctors had violated his constitutional rights (a so-called Bivens claim).  PHS responded that he could not properly bring both claims, because the FTCA action was the only way that he could recover under federal law; the same statute, it argued, prohibited the estate from bringing a Bivens claim.

The Court agreed with PHS, holding unanimously that the text of the statute was clear on its face: a Bivens action was not allowed.  Because it regarded the statute as clear, the Court rejected historical, policy, and interpretative arguments that would support allowing the doctors to be sued.  To the Court, then, this issue was an easy one, to be decided based simply on the statutory language rather than on the emotional nature of the facts.

The Court was swift and definitive in Renico v. Lett, a case argued only a month ago.  This is a case about “habeas,” or a defendant’s request to a federal court to determine whether or not he is being detained illegally. It’s also about double jeopardy, which is the constitutional prohibition against trying a criminal defendant more than once for the same crime.

The case involved a defendant whose first trial ended in mistrial.  After he was re-tried and convicted, he appealed; his argument was that because there was no “manifest necessity” for the mistrial – the jury had only deliberated for a few hours, after which the foreperson told the judge that the jury could not reach a verdict unanimously – his second trial violated the Constitution’s prohibition on double jeopardy.  On appeal, the state supreme court upheld the conviction.  As I explained after the arguments in the case, both the federal trial court and the intermediate appellate court granted the defendant habeas relief.  Those courts reasoned that the state supreme court’s decision was precisely the kind of “unreasonable applicable of . . . clearly established Federal law” required to receive federal habeas relief.

The Supreme Court, however, reversed.  Although it too expressed some skepticism about whether the trial judge erred in declaring a mistrial, the state supreme court’s decision holding that the trial judge had soundly exercised her discretion was, it emphasized, not “objectively unreasonable” given the facts of the case and the very general rule used to determine whether a mistrial is appropriate.

We haven’t talked about law clerks in Plain English, so today seems like a very good time to do so, especially because, if you have been following our Thirty Days of Stevens coverage, you have seen posts by many of his former clerks.  Who are the law clerks, and what do they do?  Well, first of all, these folks are extremely smart.  They are usually young lawyers who graduated at the very tops of their law school classes, then “clerked,” or served in the chambers, of another federal court judge for at least a year.  Before or during their first clerkship (often for what’s called a “feeder judge,” or a judge who regularly “sends clerks up” to the Supreme Court), they sent applications to the Justices at the Supreme Court asking to come work for them for a year.  Any SCOTUS clerkship is considered to be an incredible prize and honor, and most clerks “graduate” from their year at the Court with more employment options than they can count.

So what do they do while they’re there?  Well, they work very, very hard.  In most chambers, clerks review cert. petitions and make recommendations on whether the Court should hear a case.  They also usually draft “bench memos” (memos to their Justice about cases to be argued), compose the first drafts of opinions, and make recommendations on death penalty cases.  They watch most oral arguments and take notes for their Justice, write speeches, do research . . .  the job is pretty much 24/7 for the year while they are at the Court.  Despite the long hours, though, past clerks will tell you that the job gives them an insider’s view – and an understanding of the federal court system – like none other. And clerks tend to stay in touch with their Justices and with each other for many years to come.

One more topic for today:  the closing of the front doors of the Court for security reasons. Those of us who love the Court have walked up the forty-four marble steps and in through the front entrance many, many times.  Even Justice O’Connor has a black-and-white photo of herself as a young lawyer standing in front of the entrance – never dreaming, of course, that she’d someday be a member of the Court inside.  In their written ”dissent” that accompanied the Court’s announcement of the closure, Justices Ginsburg and Breyer expressed concerns that the closing had a symbolic, as well as a practical, impact.  But the Court building is nearing the end of a first-ever renovation in which the building will be more accessible, more modern, and more secure.   Two new doors will become the primary means of access to the exhibits, offices, and courtroom that lie inside – welcoming Court fans old and new.