Thursday, August 19, 2010

Justice Stevens's Triumph

Jason Mazzone

In the Supreme Court’s 2009 Term, now-retired Justice John Paul Stevens was in the minority more frequently than any other Justice. Yet the 2009 Term also represented the near-triumph of Justice Stevens’s position on the role of the Supreme Court vis a vis the state courts in criminal cases.

Stevens has long argued that in exercising its power to control its docket the Court should not review criminal cases in which the only alleged error is that the state court granted the defendant stronger protection than the Court’s own precedents require. With two exceptions, the 2009 Term was consistent with Stevens’s approach.

Stevens first expressed the view that the Court should not review criminal cases in which the state court over-protected the defendant in 1983 in Michigan v. Long. In Long the Michigan Supreme Court had reversed a criminal conviction for marijuana possession, holding that a police search of the passenger compartment of the defendant’s vehicle violated the Fourth Amendment and that the marijuana found therein had to be suppressed. The state obtained review of the decision in the U.S. Supreme Court. The defendant argued that the Court lacked jurisdiction because the state court holding rested on an independent and adequate state law ground, the Michigan Constitution, which gave greater protection from searches and seizures than did the Fourth Amendment. Writing for the Court, Justice O’Connor held that jurisdiction was proper because, while the Michigan Supreme Court had referred in two places to its own state constitution, it otherwise “relied exclusively on federal law.” Justice O’Connor held that in order for the Court to deny jurisdiction, the state court must make its independent reliance upon state law clear in its opinion. Absent a plain statement of reliance upon state law, the Court would presume jurisdiction. Turning to the merits of the case, the Court held that the Michigan court had erred and that the search of the passenger compartment of the defendant’s vehicle was reasonable under the Fourth Amendment.

Writing in dissent in Long, Stevens thought several factors combined to counsel against the Court exercising jurisdiction to hear the case: the Court’s traditional presumption that when a state court invokes state law it is an independent basis for the state court’s decision, respect for state courts, and the scarceness of federal judicial resources. As a general matter, Justice Stevens reasoned, the Supreme Court should allow “other decisional bodies to have the last word in legal interpretation until it is truly necessary for th[e] Court to intervene.” The Court need not, he argued, be concerned with “cases in which a state court has upheld a citizen’s assertion of a right . . . under both federal and state law” and a state officer complains that “the state court interpreted federal rights too broadly and ‘overprotected’ the citizen.” Therefore, he reasoned, “in reviewing the decisions of state courts, the primary role of this Court is to make sure that persons who seek to vindicate federal rights have been fairly heard.” This approach, he noted, would shrink the docket of states’ requests for reversals of state court judgments in favor of their citizens.

On the same day the Court decided Long, Justice O’Connor also wrote the majority opinion in California v. Ramos. Ramos reversed a California Supreme Court holding that the Eighth Amendment prohibited an instruction to a capital sentencing jury that the jurors could take account of the governor’s power to commute a life sentence—an instruction which, the state court reasoned, implied that the jury did not really have the ultimate responsibility in the case. In his dissent, Justice Stevens argued that review was unwarranted because the California court’s decision, while based on the federal Constitution, would have no impact on other states. According to Justice Stevens, “[n]othing more than an interest in facilitating the imposition of the death penalty in California justified this Court’s exercise of its discretion to review the judgment of the California Supreme Court,” an interest insufficient to warrant review. The issue in the case, an application of the Eighth Amendment in the defendant’s favor, was “plainly a matter that is best left to the States.” Indeed, even if the state court had erred in its application of the Eighth Amendment, there was no reason for the Court to review the decision.

Although Justice Stevens’s dissents in Long and Ramos did not attract a single other vote (Justice O’Connor called his argument “novel”), in the ensuing years he argued on occasion that the Court should deny review in criminal cases when the only alleged error was that the state court had over-protected the defendant’s rights.

This brings us to the Court’s October 2005 term when, with renewed energy, Justice Stevens argued in three cases that the Court should exercise restraint in reviewing state court decisions. The most significant of these cases is Kansas v. Marsh. Marsh involved a defendant convicted in state court of capital murder and sentenced to death. On appeal, the Kansas Supreme Court held that the state’s capital sentencing statute violated the Eighth Amendment. The statute required the death penalty if the jury found there were aggravating circumstances that were not outweighed by mitigating circumstances—the death penalty therefore applied where the aggravating and mitigating circumstances were in equipoise. In his opinion for the Court, Justice Thomas first held that the state court decision was not based on an adequate and independent state law ground and therefore jurisdiction was proper. Turning to the merits, the Court reversed the state court, holding that the Kansas statute was indistinguishable from the death penalty statute the Court had upheld in Walton v. Arizona and that the statute was also constitutional under other Supreme Court case law.

In his dissent in Marsh, Justice Stevens disputed the majority’s view that Walton governed and argued further that the grant of certiorari was “a misuse of [the Court’s] discretion.” Whereas the petitioner in Walton was a convicted capital defendant, and the Court’s task was “to consider whether the Arizona Supreme Court had adequately protected his rights under the Federal Constitution,” the petitioner in Marsh was the State of Kansas, which asked the Court to “review a ruling of its own Supreme Court on the grounds that the Kansas court had granted more protection to a Kansas litigant than the Federal Constitution required.” According to Justice Stevens, there was no reason under the latter circumstances for the Court to hear the case. Instead, “[a] policy of judicial restraint would allow the highest court of the State to be the final decisionmaker in a case of this kind.” By intervening, Stevens argued, the majority had acted inconsistently with principles of federalism.

Justice Scalia, who joined Justice Thomas’s majority opinion in Marsh, wrote a separate concurrence in which he disputed Justice Stevens’s view that—as Justice Scalia described it—“[w]hen a criminal defendant loses a questionable constitutional point, we may grant review; when the State loses, we must deny it.” Justice Scalia disagreed that the Court had no interest in hearing the case: “Our principal responsibility . . . and a primary basis for the Constitution’s allowing us to be accorded jurisdiction to review state-court decisions . . . is to ensure the integrity and uniformity of federal law.” By allowing state courts to apply federal constitutional rights in criminal cases more generously, Stevens’s approach would “change the uniform ‘law of the land’ into a crazy quilt.” Scalia also argued that Stevens’s approach was based “on a misguided view of federalism”:

When state courts erroneously invalidate actions taken by the people of a State (through initiative or through normal operation of the political branches of their state government) on state-law grounds, it is generally none of our business; and our displacing of those judgments would indeed be an intrusion upon state autonomy. But when state courts erroneously invalidate such actions because they believe federal law requires it—and especially when they do so because they believe the Federal Constitution requires it—review by this Court, far from undermining state autonomy, is the only possible way to vindicate it.

In other words, without review in the Supreme Court, state courts could never be held accountable for their rulings based on the federal Constitution. (Scalia made no mention of the checking function of state judicial elections.)

The 2009 Term is largely consistent with Stevens’s approach. In the 2009 Term, the Court heard just two cases, Michigan v. Fisher and Florida v. Powell, in which the state argued that the state court had wrongly applied the Court’s precedents to the benefit of a criminal defendant. In Fisher, police officers responding to a disturbance entered the defendant’s home without a warrant after they saw him inside the home screaming, throwing things, and bleeding. At the defendant’s trial for assault, the state court held that the Fourth Amendment rendered the evidence the police obtained from the home (including a gun) inadmissible. (The appellate court affirmed and the Michigan Supreme Court denied review.) In a per curiam, the Supreme Court reversed, holding that under the emergency aid exception to the Fourth Amendment recognized by Brigham City v. Stuart the warrantless entry into the home was permissible. “A straightforward application of the emergency aid exception, as in Brigham City, dictates that the officer’s entry was reasonable.” Not surprisingly, Stevens dissented. He criticized the majority for “micromanaging the day-to-day business of state tribunals making fact-intensive decisions of this kind.” (Stevens had also dissented in Brigham City on the ground that the Court should not have granted review to correct a state court decision over-protecting the defendant; he called the case "an odd flyspeck.") Justice Sotomayor joined Stevens's dissent though it is too soon to tell if she will sign on to Stevens's general approach to state court criminal cases).

In Powell, police gave the defendant a Miranda warning that included the statements “You have the right to talk to a lawyer before answering any of our questions” and “You have the right to use any of these rights at any time you want during this interview” but did not specifically advise the defendant he had the right to have a lawyer present during questioning. The Florida Supreme Court held that the warning was defective under Miranda and that the defendant’s statement (admitting he owned a gun) had to be suppressed. In an opinion by Justice Ginsburg the Supreme Court reversed, holding 7-2 that the warning was adequate. Justice Stevens dissented. Criticizing (once more) the standard of Michigan v. Long, Stevens contended that the Court should not have heard the case at all because the Florida decision rested on an independent and adequate state law ground and he predicted that the state court would simply reinstate its prior ruling under the state constitution. And on the merits of the federal issue, Stevens argued that the Court should not have intervened when reasonable judges can disagree about whether specific language satisfies Miranda and “the judges of the highest court of the State have decided [a specific Miranda] warning is insufficiently protective of the rights of the State’s citizens.”

Fisher and Powell stand alone. Whether by accident or by design, no other case from the 2009 Term fell within the class of cases (state courts extending the Court's precedents to over-protect criminal defendants) to which Stevens would simply deny review.

In my next post, I’ll discuss how Michigan v. Long and Kansas v. Marsh shed light on the Second Amendment cases, DC v. Heller and McDonald v. Chicago.

Update: I have updated this post to incorporate discussion of Florida v. Powell.


I will miss Stevens' for principled stands such as these, "novel" or not.

I respect Scalia's rejoinder cited here but I do wonder if as a norm the Supreme Court did evenhandedly take cases for which the defendant lost below to fix debatable interpretations of federal constitutional law.

As Stevens once noted, however, originally, the federal courts did not even have jurisdiction in such cases as a rule.

A state court in close cases is best informed (if possible under its precedents) to rest on independent state grounds, clearly so. In most cases, a parallel state provision will be available. And, if a state court thinks such and such right means 'x,' it should rest it on the state provision.

Since federal law puts a 'floor' not a 'ceiling' here, this would allow the state discretion Stevens' favors without running into Scalia's somewhat valid concerns.

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