Washington State Grange v. Washington State Republican Party (06-713), Washington v. Washington State Republican Party (06-730), Snyder v. Louisiana (06-10119) and order list

March 24, 2008 Supreme Court Update

Greetings, Court Fans!
The big news of the week was the Court's consideration of District of Columbia v. Heller, in which it appears we may get some sort of ruling blessing an individual right to bear arms under the Second Amendment – though we don't expect to see that ruling for a few more months. Apart from Heller, the Court issued two decisions this week as well as a slew of cert grants (if the current cert grant pace continues – not terribly likely – the Court could double the number of cases heard this Term!). Let's get right to the decisions:
In the combined cases of Washington State Grange v. Washington State Republican Party (06-713) and Washington v. Washington State Republican Party (06-730), the Court held 7-2 that a constitutional challenge to Washington's new primary system was premature. Washington used to have a "blanket" partisan primary, in which every candidate for an office was thrown onto one ballot, and the top vote-getter for each party became that party's nominee for the general election. After the Court held that a similar California primary violated parties' First Amendment right to associate (because it forced them to allow nonmembers to help choose their nominees), Washington adopted a new method in which parties would no longer have "nominees." Instead, all the candidates would go onto the ballot and could state which party they "preferred" (critically, without regard to whether the party approved of their so stating), and only the top two vote-getters, regardless of party preference, would go on to the general election. Before Washington could run a primary under the new law, several parties challenged the law as facially unconstitutional because it effectively forced them to associate with candidates they might despise. The lower courts agreed, striking down the law.
The Court reversed, in an opinion by Justice Thomas. For the majority, the problem was that the parties had made a facial challenge, which requires showing that there are no circumstances under which the law would be valid. Given that there had never been a primary under the new law – in fact, Washington had never even designed a ballot – the Court could only speculate as to whether it would produce the harms the parties were claiming. The primary did not purport to choose the parties' nominees, and there was no evidence that voters necessarily would confuse a candidate's statement of "preference" with a party's endorsement. In fact, the ballot might even include a disclaimer noting that the statements were not tantamount to endorsements (and, after this ruling, you can bet it will), and the state might embark on a voter-education initiative to make sure voters understand the difference (again, you can bet it will). Absent evidence that the primary would severely burden the parties' rights, the state only needed an important regulatory interest to justify it – and providing voters with relevant information about candidates on the ballot easily justified the new system.
Justice Scalia dissented (along with Justice Kennedy), in what some think is the first opinion to refer to a Sesame Street character. In Scalia's view, a candidate's statement of preference unavoidably colored voter perceptions of a party's message – and by allowing these statements while forbidding parties from disavowing candidates or identifying their own preferred choice, the new primary clearly burdened the parties' freedom of association. He compared the law to one that allowed Oscar the Grouch to proclaim his love for Campbell's soup – suggesting to those of us with good taste that it must be awful – while barring Campbell's from disavowing the endorsement. He also would not "wait and see" for an as-applied challenge, on the ground that the Court has never forced groups to produce evidence of forced-association harm, which might be impossible to truly prove. The Chief, in a concurring opinion that Justice Alito joined, responded that it was hard to see how allowing someone to say "I like Campbell's soup" automatically "associated" them with Campbell's. He agreed that evidence of voter perceptions might not be needed, but he would rather wait to see the ballot, which might address Scalia's concern.
The Court's second decision, Snyder v. Louisiana (06-10119), was a bit of a surprise, with the Court ruling 7-2 that a Louisiana trial court committed clear error in rejecting a Batson challenge to a prosecutor's peremptory strike to remove a black prospective juror, Jeffrey Brooks, from the jury panel. The prosecutor claimed that he struck Brooks because (1) he appeared nervous during voire dire and (2) he was a college senior worried about completing student teaching requirements who might convict the defendant only on a lesser included offense to avoid participating in a penalty phase. The trial court authorized the strike without stating which of these "race-neutral" explanations it accepted. A divided Louisiana Supreme Court affirmed the conviction. In reversing, the Court, led by Justice Alito, reasoned that, given the lack of explanation by the trial court, it could not presume that the trial court relied on the prosecutor's claim that Brooks appeared nervous (a basis that would have been nearly impossible to attack on appeal given the trial court's unique ability to observe demeanor), and the student teaching rationale was "suspicious" since Brooks's dean assured the court he would still be able to meet his teaching requirements if he was selected as a juror and the prosecutor did not strike white jurors with equally serious work and family commitments. The prosecutor's "pretextual" rationale thus led to an inference of discriminatory intent, and the trial court should have accepted defense counsel's Batson challenge. Justice Thomas, joined by Justice Scalia, dissented. In their view, despite the Court's lip-service to paying deference to the trial court, the Court simply substituted its views. In particular, the dissenters noted that there was no requirement that the trial court articulate which of the prosecutor's reasons it accepted and the Court was simply wrong to assume the trial court did not rely on Brooks' nervousness. In addition, the majority's reliance on comparisons to white jurors that were not presented to the Louisiana courts could not provide a basis for reversal.
The Court's eight cert grants came in:
Negusie v. Mukasey (07-499), where the Court will determine whether the Immigration and Nationality Act's (INA's) "persecution exception," which prohibits the Secretary of Homeland Security and the Attorney General from granting asylum to, or withholding removal of, a refugee who has "ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion," applies when a person is compelled against his will by credible threats of death or torture to assist or participate in the acts of persecution.
FCC v. Fox Television Stations (07-582), which asks: "Whether the [Second Circuit] erred in striking down the Federal Communications Commission's determination that the broadcast of vulgar expletives may violate federal restrictions on the broadcast of 'any obscene, indecent, or profane language,' when the expletives are not repeated?" (The FCC previously allowed isolated uses of so-called four letter words, but recently reversed its policy.)
Vaden v. Discover Bank & Discover Financial Services, Inc. (07-773), where the Court will continue its foray into arbitration law, with the following two questions presented: "(1) Whether a suit seeking to enforce a state-law arbitration obligation brought under Section 4 of the Federal Arbitration Act ‘aris[es] under' federal law when the petition to compel itself raises no federal question but the dispute sought to be arbitrated – a dispute that the federal court is not asked to and cannot reach – involves federal law. (2) If so, whether a ‘completely preempted' state-law counterclaim in an underlying state-court dispute can supply subject matter jurisdiction."
Jimenez v. Quarterman (07-6984), where the Court will once again consider the calculation of the Antiterrorism and Effective Death Penalty Act's (AEDPA) one year limitation period for filing a habeas corpus petition. After pursuing a state habeas petition claiming that his counsel abandoned him on appeal, Jimenez successfully obtained the right to file a belated appeal of his conviction. After his appeal and a second state habeas petition were denied, Jimenez sought habeas relief in federal court, but the Court found his claim barred by AEDPA's limitation period, which it found ran from the date his initial appeal period became final. The Court will determine whether the one-year period should have been reset to begin to run only after Jimenez completed the belated appeal the state court allowed him.
Melendez-Diaz v. Massachusetts (07-591), which asks: "Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is ‘testimonial' evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)?"
Bartlett v. Strickland (07-689): "Whether a racial minority group that constitutes less than 50 of a proposed district's population can state a vote dilution claim under Section 2 of the Voting Rights Act."
Waddington v. Sarausad (07-772), where the Court will answer the following two questions presented: "(1) In reviewing a due process challenge to jury instructions brought under 28 U.S.C. § 2254, must the federal courts accept the state court determination that the instructions fully and correctly set out state law governing accomplice liability? (2) Where the accomplice liability instructions correctly set forth state law, is it an unreasonable application of clearly established federal law to conclude there was no reasonable likelihood that the jury misapplied the instructions so as to relieve the prosecution of the burden of proving all the elements of the crime?"
Oregon v. Ice (07-901): The Court limited cert to the following question presented: "Whether the Sixth Amendment, as interpreted by Apprendi v. New Jersey and Blakely v. Washington, requires that facts (other than prior convictions) necessary to impose consecutive sentences be found by the jury or admitted by the defendant."
That's all for now – thanks, as always, for reading!
Kim & Ken
From the Appellate Practice Group at Wiggin and Dana
For more information, contact Kim Rinehart, Ken Heath, Aaron Bayer, or Jeff Babbin at 203-498-4400