Order List

October 27, 2008 Supreme Court Update

Greetings, Court Fans!
There were no arguments at the Court this week, but we've got a hodgepodge of news for you. First up, the Court issued an order list Monday in which it granted cert in one new case, Flores-Figueroa v. United States (07-108). The Court will consider the intent requirement for aggravated identity theft under federal law, specifically "[w]hether . . . the Government must show that the defendant knew that the means of identification he used belonged to another person." (In case anybody's keeping track, the Court is already well ahead of its cert-grant pace of the last two Terms, which were admittedly not-exactly-work-intensive. Perhaps the Chief will finally make good on his pre-confirmation goal of increasing the size of the Court's docket.)
In addition, following up on the Court's modification of its decision last term in Kennedy v. Louisiana, there were more minor fireworks from the Justices on the death penalty this week when Justices Stevens and Thomas exchanged "statements" regarding the denial of cert in another capital case, Walker v. Georgia (08-5385). Walker challenged Georgia's administration of the death penalty, claiming that the Georgia Supreme Court failed to conduct "meaningful proportionality review" or to enforce reporting requirements regarding the death penalty to ensure that only the most culpable offenders were put to death, and that these failures violated the Eighth Amendment's ban on arbitrariness and discrimination in capital punishment. Stevens wrote to say that while the petition rightly failed because Walker did not raise these issues in state court, the substance of Walker's petition was on the mark. (In that regard, his statement is reminiscent of his "concurrence" last Term in Baze v. Rees, where Stevens essentially wrote that he was constrained by precedent to uphold Kentucky's use of the death penalty even though he thought it was just plain wrong.) A little background may be necessary: In Furman v. Georgia (1972), Justice Stewart noted in a solo opinion that the state's death penalty scheme gave unfettered discretion to often racially biased juries. Georgia later amended its statute to require mandatory appellate review of the "proportionality" of a death sentence to guard against discrimination, and that safeguard was one of the reasons Georgia's new system was later upheld in Gregg v. Georgia (1976). Stevens noted, however, that a heightened risk of arbitrariness persisted in cases, like Walker's, that involved black defendants and white victims. In his view, the Georgia Supreme Court's review of Walker's case was perfunctory, addressing the proportionality issue with a single, conclusory sentence and a string cite of cases imposing death with no evaluation of their underlying facts for relevant similarities or differences vís a vís Walker's case. Stevens found it particularly troubling that the Georgia court did not examine any similar cases in which the jury imposed a life sentence rather than death, and offered up a slew of examples of his own. He also admonished the court for not enforcing the state's requirement that trial judges issue detailed reports on defendants' histories and circumstances. In short, he rather unequivocally accused the Georgia Supreme Court of abandoning its duty of care to capital defendants. That prompted Thomas to offer a concurrence in the denial of cert, where he essentially defended the Georgia Supreme Court's review of Walker's case as consistent with that provided in previous capital punishment decisions that the U.S. Supreme Court had reviewed and upheld. Georgia did not have to provide proportionality review at all, and having decided to provide that additional protection to capital defendants, its implementation here raised no constitutional issue. He also noted that the Court had considered and rejected the race-of-victim effect as a reason to reject the death penalty in McCleskey v. Kemp (1987), another Georgia death penalty case. Whatever Stevens' views on the death penalty now, McCleskey and Gregg are still the law, and Georgia had followed them faithfully.
Finally, the Court issued a per curiam order late last week in an elections matter, Brunner v. Ohio Republican Party (08A332). In that case, a federal district court had issued a TRO directing Brunner, Ohio's Secretary of State, to comply with the Help America Vote Act, which requires her to work with Ohio's motor vehicle authority to harmonize their databases for voter registration purposes. Brunner, however, argued that the court had no jurisdiction to enter a TRO in a case brought by a private litigant such as the Republican Party, and the Court agreed that the Party was not sufficiently likely to win on that issue. It therefore vacated the TRO.
With no arguments this week, we're not expecting any more news or orders, but we'll keep watch just in case. Until next time, thanks for reading!
Ken & Kim

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