Welcome back. We'll look at four cases, arranging in increasing order of the height of their media profile.
Death with the Assistance of Counsel
Diving right in there: in McCOY v. LOUISIANA (May 14) the Court found that the "effective assistance of counsel" guaranteed by the 6th amendment to the Constitution requires that the defendant be able to choose the objective of his defense -- that is, whether the defense should be to concede the crime but plead mitigating circumstances, or whether it should deny guilt.
In the case before the court, McCoy's attorney, Robert English, admitted to the jury repeatedly, and against his client's repeated instructions, that his client "committed three murders." Indeed, he told them there was "no way reasonably possible" that they could hear the case and come to any other conclusion than that McCoy was "the cause of these individuals' deaths." He tried to make the case for mercy, for seeing the murders as the consequences of his client's mental problems. But he also put his client on the stand, to tell his own story.
If anyone in the juror had been at all tempted by English's "admission-and-mitigation" strategy to argue for mercy in the sentencing phase, that was muddled up by McCoy's testimony, in which he said that he didn't kill anyone, that he was out of the state at the time. So the jury found him guilty and brought in three death sentences.
Ginsburg writes for the court here, on a 6 to 3 vote. She made the obvious point, that though counsel as a professional has to have some room to make "strategic choices about how best to achieve a client's objectives, " that does not add up to the choice of "what the client's objectives in fact are."
The surprise here, since that decision seems so bloody obvious, is that there were three contrary votes on the bench. The dissent, by Justice Alito, tries to make the distinction between admitting "guilt" and admitting that the defendant caused the deaths of the victims. English only admitted that his client committed to acts that caused the deaths, his statements (as Alito parses them) leave open the possibility that his client had not had the mens rea to commit murder.
But that parsing is specious, for a couple of reasons. First, as quoted above, English used both formulations he sometimes said that McCoy had caused deaths. At other times, though, he used the conclusory term "murder" as a name for what he was conceding. Second, even if English had been more careful in his wording, Ginsburg's point would hold. The concession, over strenuous objection by the client, would still go beyond the agent-principal relationship at the heart of the right to the "assistance" of counsel.
Gorsuch Joins the Liberals
Unless I've missed something important, there has been only one case in this term in which (1) there was a 5-4 vote, (2) the junior Justice, Trump appointee Gorsuch, voted along with that majority and (3) by that margin, the Court deprived this administration of something it wanted. Whether or not it is unique in this combination, it is worth our attention. It raises the possibility that Gorsuch may have more to him that Trump (or The Federalist Society, to whom Trump farmed the job out) really suspected at the time of that nomination.
The case is SESSIONS v. DIMAYA. It turned on a provision of immigration law that essentially allows a speeded-up deportation where an alien has engaged in a "crime of violence." The question was whether the term "crime of violence" is sufficiently well defined in accord with due process of http://www.scotusblog.com/case-files/cases/lynch-v-dimaya/ (5-4)
Kagan delivered the opinion for the court, joined by Ginsburg, Breyer, and Sotomayor, and with respect to most of the sections of the opinion, by Gorsuch.
Chief Justice Roberts wrote the dissent, followed by Kennedy, Alito, and Thomas. Except for Gorsuch, this is the usual right-versus left polarizing line-up.
The long tenure of a Justice of the US Supreme Court, and the near-impossibility of removing a Justice once in office, has long allowed for philosophical movement. Sometimes the movement occurs only well into a Justices tenure (Frankfurter was considered a solid New Dealer appointee at first, it was only after a period of years that he came to be considered on the 'right' of the court). But sometimes it comes quite quickly. An Eisenhower appointee, Chief Justice Earl Warren, proved full of surprises from the start.
Gorsuch's role in the Dimaya case gave rise to both hopes and fears that something of the kind was/is brewing.
Compelled Speech In The Matter of Abortion.
On Tuesday, June 26, the high court issued its judgment in National Institute of Family and Life Advocates v. Becerra. In an opinion by Justice Thomas, the court found that the NIFLA is likely to succeed on its claim that compelled speech requirements imposed on family planning clinics by the state of California violate its first amendment rights.
The "likely to succeed" language might strike non-lawyers as odd. "They have succeeded because they've now won at the Supreme Court, so the 'likelihood' is now unity!" you might say. But ... no. The "likely to succeed" language comes into this case because it arose from NIFLA's motion for a preliminary injunction. To get such an injunction, one has to prove one is likely to prevail on the merits. Those merits, properly speaking, have not yet been adjudicated, so the decision is couched as a discussion of their "likely" victory when and if that full adjudication takes place.
The decision broke down 5-4 along now familiar grounds. Thomas wrote for himself, Kennedy, Gorsuch, C.J. Roberts, and Alito. Breyer dissented for himself, Kagan, Sotomayor, and Ginsburg.
One odd point about authorship: Kennedy wrote a concurrence which was joined by every member of the majority except the author of said majority, Thomas. It appears as if Kennedy is stating the center of gravity on the court on this issue, leaving Thomas outside of it even when formally he is writing for it.
Much of the publicity that has attended this case prior to decision concerned the issue of "viewpoint" discrimination. The state was alleged to be spreading the message that abortion is not merely a legal right but that it can be an appropriate choice, and spreading this message by requiring people who disagree with it to say so. The decision, though, does not turn on "viewpoint" discrimination. Thomas, in a footnote, says that the viewpoint issue is a "serious concern," but that since the court finds the required notices "are unconstitutional either way," it does not reach the issue of whether that aspect of the situation would make them so.
The gist of that footnote is restated at some length in Kennedy's concurrence. Kennedy agreed that the case can be decided irrespective of the viewpoint issue, because he writes if SCOTUS had based its decision on that "some legislators might have inferred that if the law were reenacted with a broader base and broader coverage it then would be upheld."
Just a Taste of Disputes to Come
On Monday, June 4, SCOTUS issued a narrow fact-bound decision that touched on marriage equality, a cake, and the authority of the state of Colorado. I will presume in what follows that my readers are familiar with the underlying controversy and I'll simply jump to the court decision.
It reversed the opinions of the courts below, and that of the Colorado Civil Rights Commission, contending that the members of the CCRC has conducted themselves improperly, making "inappropriate and dismissive comments showing lack of due consideration for Phillips moral dilemma." The state of Colorado has a duty not to base its laws, or the administration/enforcement of those laws, on hostility to a religious viewpoint and, in this matter, the Court found that Colorado had violated that duty.
For the moment, then, Phillips is off the hook. But (for all the opinion says) it could well be the case that the next exertion of such authority at his expense, or at the expense of another cake maker or flower arranger or wedding planner with similar religious convictions, will occur absent the marks of hostility to Court found on the record here, and will come out the same way. That next exertion of authority, insofar as we can tell from this decision, will be upheld.
The Court decided not to decide the "delicate question" of when the free exercise of religion on the part of the baker must yield to the otherwise acceptable exercises of state power.
This was not a 5-4 split, as the previous two cases we've discussed were. Nor was it 6-3, as was McCoy. This was a 7-2 vote. Justice Ginsburg, joined by Sotomayor dissented. There were also two Justices who wanted to decide this case on the broader possible grounds in Phillips' favor. Thomas and Gorsuch. So for the purpose of this decision, there are three blocs on court. In between Thomas' concurrence on the one side and Ginsburg's dissent on the other side there are five justices who thought this case should be decided on the procedural not-so-delicate ground.
The 'liberals' within that five-Justice bloc are: Breyer and Kagan. Kagan's vote in this case in particular has led to some theorizing either that she is "moving right" or that she is playing various strategic games, in this case and others, precisely to create a center ground so the views she holds dear won't be ground down by a lot of 5-4 votes.
That is all I am going to say about the decisions this term that don't involve gerrymandering. Yes, I've been less prescriptive and more descriptive in this year's round up than has been my habit. But perhaps with age comes detachment. Or my analytical itch is better scratched by trying to figure out what is going on than by expostulating as to what I would prefer.
I may be in a more contentious mood tomorrow, when I write about the court's evasion of the issue of partisan gerrymandering this term.
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