Citizens United v. Federal Election Commission (08-205), South Carolina v. North Carolina (138 Orig.), Kucana v. Holder (08-911), Wood v. Allen (08-9156), Presley v. Georgia (09-5270) and Wellons v. Hall (09-5731)

January 25, 2010 Supreme Court Update

Greetings, Court fans!

Unless you've been in seclusion since yesterday, you likely have been inundated with news regarding the Court's highly controversial campaign finance decision in Citizens United v. Federal Election Commission (08-205), which opened the doors to unrestricted spending by corporations and unions on advertisements supporting or attacking political candidates. I will give you the very short version now, with a deeper dive into the Justices' five opinions (totaling over 175 pages), coming soon. This Update will also cover the five other decisions released this week, including: an original jurisdiction case relating to the intervention of private parties in a dispute over the Catawba River; an immigration decision regarding federal court jurisdiction to review administrative rulings on motions to reopen, and a trio of criminal/habeas corpus decisions.

Citizens United ultimately came down to a difference of opinion over the meaning of the First Amendment and its application to entities other than natural persons – specifically, corporations and unions. The five Justice majority, led by Kennedy, held that the First Amendment does not draw distinctions based on the identity of the speaker. Focusing on the rights of listeners, the Court explained that "[w]hen the Government seeks to . . . to command where a person may get his . . . information . . ., it uses censorship to control thought." Because 2 U.S.C. § 441b banned speech by corporations and unions on a subject at the very heart of the First Amendment – i.e., who should be elected – it could not pass constitutional muster. Justice Stevens authored a lengthy and impassioned dissent. First, § 441b didn't "ban" speech, it merely limited a small category of speech during the period immediately preceding an election – and corporations and unions could still engage in this speech by creating a political action committee. Further, while corporations and unions were entitled to some First Amendment protections, the dissent saw significant distinctions between natural persons and these legal entities that warranted greater regulation of the latter, including both the possibility and appearance of corruption that results from allowing these entities to "buy" access with their massive expenditures, and the fact that corporations and unions may not represent the views of their shareholders and members (real flesh and blood people), who are nonetheless forced to pay for the communications. These concerns had prompted federal regulation of such communications for a century, as well as a multitude of similar state regulations. Yet, the majority disemboweled these long-standing protections on the election process, and decades of Court precedent with it, notwithstanding the fact that Citizens United had voluntarily dismissed its facial challenge to § 441b in the district court. The Court did find manage to find a bit of unanimity however, with eight Justices (all but Thomas) agreeing that the disclaimer and disclosure provisions of the Bipartisan Campaign Reform Act are constitutional.

Turning to the more mundane, the Court allowed two private parties to intervene in South Carolina v. North Carolina (138 Orig.), an original jurisdiction action seeking equitable apportionment between North and South Carolina of the waters of the Catawba River. You might think this would be uncontroversial, but the 5-4 majority (by Justice Alito) viewed its decision as consistent with "two centuries" of precedent, while the dissenting opinion by Chief Justice Roberts viewed it as "literally unprecedented." There was some common ground. Both the majority and the dissent rejected a broader intervention standard adopted by the Special Master, using instead a standard from a 1953 Court decision that requires an intervener to show a compelling interest in its own right that is not properly represented by the state. Applying that standard, the Court allowed intervention by the Catawba River Water Supply Project, an entity that is owned by and supplies water to one county in each of the Carolinas, and by Duke Power, which owns dams and reservoirs on the river used to generate hydroelectric power. The Court denied intervention to the City of Charlotte, concluding that its interests were adequately represented by North Carolina. The dissent insisted that allowing any non-sovereign entity to intervene, something never before allowed in an equitable apportionment action, would transform this type of suit into "a forum for airing private interests." Court watchers will note the unusual alignment of the Justices, with Alito, Stevens, Scalia, Kennedy and Breyer in the majority, and the Chief, Thomas, Ginsburg and Sotomayor in dissent. Few decisions this Term, if any, are likely to follow that configuration!

Next, in Kucana v. Holder (08-911), the Court, led by Justice Ginsburg, held that a provision of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), which bars judicial review of "any . . . decision or action of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General," 8 U.S.C. § 1252(a)(2)(B), applies only to acts that are made discretionary by statute, not by regulation. An Immigration Judge denied Kucana's motion to reopen his removal proceedings (in which he asserted new evidence to support his plea for asylum) and the Board of Immigration Appeals ("BIA") sustained. By regulation (not statute), the decision to grant or deny a motion to reopen is within the discretion of the BIA, exercising authority delegated to it by the Attorney General. The Seventh Circuit refused to review the administrative decision, concluding that § 1252(a)(2)(B) stripped courts of jurisdiction to review administrative reopen proceedings – despite the fact that both parties to the case argued in favor of jurisdiction (and the six circuits that had addressed this issue previously all found jurisdiction).

The Court reversed. Construing § 1252(a)(2)(B), the Court held that the phrase "specified under this subchapter to be in the discretion of the Attorney General" meant that the act must be discretionary because of a statutory provision in that particular subchapter. Because the Attorney General's discretion over reopen proceedings stemmed from a regulation, § 1252(a)(2)(B) did not remove federal court jurisdiction to review such decisions. The Court viewed this conclusion as consistent with the history and context of § 1252(a)(2) as a whole, the longstanding history of judicial review of administrative rulings on motions to reopen, and the age-old presumption favoring judicial review of administrative action. Further, the Court noted that "[s]eparation-of-powers concerns . . . caution us against reading legislation, absent clear statement, to place in executive hands authority to remove cases from the Judiciary's domain." Justice Alito concurred in the judgment only, as he would have preferred a more narrow holding: that is, that even if some regulations might render a decision of the Attorney General unreviewable, the regulation at issue in this case did not because it was not promulgated "under this subchapter."

Moving on from the civil decisions, in Wood v. Allen (08-9156), the Court considered the interplay between two provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") governing federal court review of state-court factual findings: (a) § 2254(d)(2), which provides that a federal court may not grant a habeas petition based on a claim already adjudicated on the merits in state court unless that adjudication "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding"; and (b) § 2254(e)(1), which provides that a state court factual determination is presumed to be correct and that a petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Petitioner, a capital defendant, challenged an Alabama state court's factual finding that his attorneys' failure to pursue and present mitigating evidence of his borderline mental retardation during the penalty phase of his trial was a strategic decision rather than a negligent omission. The district court rejected the state court's conclusion, and held that counsel's failure to pursue the alleged mental retardation as a mitigating factor constituted ineffective assistance. The Eleventh Circuit reversed the grant of habeas relief, in a divided opinion.

The Court granted cert specifically to resolve an open question that has divided the lower courts: whether, in order to satisfy § 2254(d)(2), a petitioner must establish only that the state court factual determination on which the decision was based was "unreasonable," or whether § 2254(e)(1) additionally requires a petitioner to rebut a presumption that the determination was correct with clear and convincing evidence (a more demanding standard for petitioners). But the Court left that question unresolved. After reviewing the evidence, the Court concluded 7-2 that the state court's conclusion that the attorneys had made a strategic decision was not "unreasonable." Thus, there was "no need to decide whether that determination should be reviewed under the arguably more deferential standard set out in Section 2254(e)(1)." In concluding that the state court's conclusion was not unreasonable, Justice Sotomayor, writing for the majority, made a careful distinction: "whether the state court reasonably determined that there was a strategic decision under § 2254(d)(2) is a different question from whether the strategic decision itself was a reasonable exercise of professional judgment." The Court noted that the latter question (whether the attorneys' decision itself was reasonable) was outside the scope of the cert petition. Justice Stevens, joined by Justice Kennedy, dissented, arguing that the attorneys had a duty to investigate thoroughly any potentially mitigating evidence, and that their failure to fulfill that obligation "was so obviously unreasonable that the decision itself is highly persuasive evidence that counsel did not have any strategy in mind when they did so."

Finally, in two per curiam decisions this week, the Court addressed whether criminal defendants have the right to a public jury selection process, and whether a capital defendant should have an opportunity to inquire into questionable conduct by the jury that convicted him.

In Presley v. Georgia (09-5270), the defendant argued that his Sixth Amendment rights were violated when the trial court excluded his uncle from the courtroom during jury selection. Drawing from precedent in Press-Enterprise Co. v. Superior Court of Cal., that jury selection must be open to the public under the First Amendment, and Waller v. Georgia, that a pretrial suppression hearing must be open to the public under the Sixth Amendment, the Court held that a defendant's Sixth Amendment right to a public trial extends to the jury selection process. While countervailing interests – such as preventing improper communications with jurors, or protecting sensitive information – may exist in some cases, trial courts must consider alternatives to closure sua sponte and "take every reasonable measure to accommodate public attendance at criminal trials." Justice Thomas, joined by Scalia, dissented. In their view, the case should not have been decided by summary disposition because the question presented was not at all "well settled" under Press-Enterprise and Waller.

Wellons v. Hall (09-5731), involved a defendant convicted of rape and murder and sentenced to death. After trial, defense counsel learned that there may have been improper contacts between the jury, and the judge and bailiff, and that "either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts." The defendant's efforts to obtain more information about these contacts were rejected on direct appeal and during the state habeas process. When he raised the issue again in his federal habeas petition, seeking discovery and an evidentiary hearing, the district court concluded that his claims were "procedurally barred," and, in the alternative, declined to permit an evidentiary hearing because it found that the defendant did not have enough evidence of bias or misconduct. The Eleventh Circuit affirmed, concluding that the claims were procedurally bared, then adding that even if there were no bar, the defendant's claims "do not entitle [him] to habeas relief."

The Court held – and both parties and the dissenting justices agreed – that the district court and Eleventh Circuit erred in holding that there was a procedural bar. Under Cone v. Bell, decided last term, a state court's refusal to review the merits of a habeas petitioner's claim on the ground that it has already done so does not create a bar to federal habeas review. Five justices voted to "GVR" (grant the petition for certiorari, vacate the judgment, and remand for further consideration) in light of Cone. Although the Eleventh Circuit claimed to address the merits, the Court was not confident that the Eleventh Circuit had addressed the specific request for discovery or an evidentiary hearing, or that the Eleventh Circuit's reasoning on the merits was independent of the Cone error.

Justice Scalia, joined by Justice Thomas, dissented from the GVR because he believed that the Eleventh Circuit had already decided the case on its merits, and that Cone would not affect the outcome. Justice Scalia chided the majority for creating what he termed an "SRIE (Summary Remand for Inconsequential Error)" or "SRTAEH (Summary Remand to Think About an Evidentiary Hearing)." (Sound familiar? Scalia has been on a rampage lately about what he sees as inappropriate usage of the GVR.) Justice Scalia all but threw down a challenge to the Eleventh Circuit, intimating that a "self-respecting response" to the Court's opinion would be summary reissuance of the same opinion, minus the discussion of Cone. Justice Alito, joined by the Chief, also dissented from the GVR for similar reasons, but in less fiery language.

It certainly has been a busy week – more like June then a typical January. I'll be back in your inboxes soon with more detail on Citizens United as well as a summary of recent orders. Until then, thanks for reading!


From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400