Posted on October 3, 2012 at 1:45 pm by Lyle Denniston
When a lawyer comes before the Supreme Court hoping to make a broad argument, but learns — repeatedly — that the case can be won on narrower grounds, shouldn’t the lawyer relax and take what is available? A deputy state attorney general from California, Stephanie C. Brenan, would not take the hint on Wednesday as she stubbornly pressed her prepared case, even when that looked like a loser. Of course, the Court may yet snatch victory for her out of her apparent failure to get her broader point across. As it turned out, she probably was lucky that the Court did not grant review of the second issue she had asked the Court to decide; that turned out to be even weaker.
The case before the Court was Johnson v. Williams, outwardly a rather simple case about how a federal court knows whether a state court has decided some federal constitutional issues in a criminal case, in order for the federal court to be required to defer to the state decision. But the argument ranged far and wide beyond the language of the federal law that says a federal court, hearing the habeas challenge of a state prisoner, must show great respect for a state court if it actually decided an issue on the merits. Specifically at issue in this case is whether the state court gains such deference if its opinion is actually silent on the federal issues in the case, preferring to discuss only state law questions.
After Tara Sheneva Williams of Long Beach was convicted of murder, for her role in the shooting death of a liquor store operator, her lawyer contended that the trial judge should not have dismissed a “hold-out” juror who, during deliberations, had shown some sympathy for Williams and some doubt about the breadth of the prosecution’s case. The judge concluded that the juror was biased. Williams’s challenge, both in state court and later in federal habeas court, was based partly on California law governing dismissal of biased jurors, and partly on the Sixth Amendment right to a jury trial. The state court ruled against her, analyzing only the state-law question. Because of that, the Ninth Circuit Court, in the habeas case, concluded that it need not defer to the state court on the Sixth Amendment issue, finding it had not been decided. The Circuit Court went on to rule that the judge was wrong in dismissing the juror, when that order may have been based on the fact that the juror had commented to other jurors on the merits of the prosecution’s case.
The state’s lawyer opened her argument before the Justices on Monday with a plea that the Court rule that, any time a state court denies relief to a state prisoner, no matter what issues it discusses, it should be understood to have rejected all the challenges, unless it says explicitly that it was not passing upon specific issues. State courts, Brenan argued, are entitled to a “presumption of regularity” that justifies treating a decision as having disposed of every issue raised, whether or not discussed.
She had barely begun when Justice Anthony M. Kennedy told her bluntly that she did not need to make that argument. When this case was before a California court, Kennedy said, it relied upon an earlier opinion in a related case that had specifically discussed the federal constitutional claim that Williams was raising in this case. That, Kennedy said, linked the state law and federal issues in Williams’s case. That, the Justice went on, gave her “a strong argument” that the federal issue actually had been decided, but, he added, “You don’t strongly make that argument.” Brenan said she agreed with Kennedy’s point, but then immediately said she wanted the Court to rule more broadly, giving state courts the benefit of silence any time they had not made a “plain statement” that they were not deciding a particular issue.
A moment later, Justice Ruth Bader Ginsburg told Brenan that she was “straying pretty far from this case.” Ginsburg, like Kennedy, said that Williams’s two challenges — federal and state — “are tied together; you don’t need to go beyond this case.” But Brenan replied that this very case “illustrates why a broader rule is important.”
That set off a series of conjectures by members of the Court about how a federal court could decide whether a state court had decided an issue and thus gained deference in habeas. Justice Samuel A. Alito, Jr., for example, said that there could be a “presumption” that a state court had decided all issues put before it, and that could be overcome only if there were “a very strong inference that they overlooked” some point or other. Again, Brenan relied on the “presumption of regularity” in a state court, unless there were a “plain statement” by the state court to overcome it.
Obviously growing somewhat frustrated, Justice Kennedy said that a court could spend $28.52 and buy each judge a rubber stamp, with the message that “we considered and rejected all constitutional claims.” If judges used that regularly in their opinions, Kennedy said, there would be no question about whether they had resolved all issues. Brenan countered, though, that the California court in this case had done something of the same thing merely by its judgment denying relief to Williams.
No matter what the questions from the bench, Brenan would not budge from her chosen argument.
She also got a sharply critical reaction from the Court when some of the Justices turned to an issue that the Court had not agreed to decide: were Williams’s Sixth Amendment rights violated when the judge dismissed a “hold-out” juror? That was the merits question, and Brenan’s petition had tried to raise that as the second question. The Court chose to bypass it. But Justice Ruth Bader Ginsburg brought it up, saying it was “really troublesome” that a judge would dismiss a jury in the midst of deliberations, based upon that juror’s view of the evidence. Brenan said that, if there might have been a constitutional violation, it would have occurred if that “biased juror” had been allowed to sit.
Justice Kennedy, after saying that the Court “should not go there,” presumably because the question had not been granted, said that he had “never seen a case like that; I hope it doesn’t happen with regularity. I think it’s very troublesome.” That prompted Justice Sonia Sotomayor to ask Brenan whether it was a sign of bias if a juror believed that the person on trial was not guilty? No, Brenan replied, but that was not the situation here; the juror in question, she said, had refused repeatedly to follow the law. Sotomayor then asked whether a juror’s view that there had to be proof beyond a reasonable doubt would constitute bias? Brenan said no, but added that the juror in this case had been insisting on a “no-doubt standard, an absolute standard.”
Sotomayor let the exchange go with the comment: “I’m deeply troubled, when a trial judge intrudes in jury deliberations. The degree of being convinced — that is the very essence of jury deliberations.” Brenan commented that “the judge had to do something.”
Williams’s lawyer, Kurt D. Hermansen of San Diego, predictably had trouble from the outset, probably because most of the Justices already were strongly tempted to conclude that Williams could not win on the point that the California court had not addressed the Sixth Amendment claim in some way. His main argument, that a federal court should just look at the text of a state court opinion and then conclude what had been decided, did not attract a following on the bench. But Kennedy brought up, again, his point that in this very case the state court had relied on an opinion which did mention the federal issue in ruling against Williams. Justice Elena Kagan chimed in: “This opinion cuts against you.” The state court, she continued, had applied a prior precedent that did, in fact, amount to a “constitutional adjudication.”
Justice Stephen G. Breyer got specific: he said there were twenty-eight lines of discussion in the state court opinion, and fifteen of them were about the constitutional issue. Hermansen got nowhere with his comment that the discussion cited by Breyer was not about the Sixth Amendment issue Williams had raised.