266. False but true

Mike Luckovich recently published this cartoon, wondering whether President Bush can really veto reality.  Luckovich's blog recommends this David Ignatius column asserting that "only a visitor from another planet" could believe the President's recent praise for the "candor" of an Attorney General who seems almost cartoonishly incapable of telling the truth.  

In official Washington, many influential people believe - or act as though they believe - that meaning precedes reality, and that Rove-like spin isn't just a technique but a philosophy of life.  Ron Susskind famously described a conversation with a Bush advisor:

The aide said that guys like me were ''in what we call the reality-based community,'' which he defined as people who ''believe that solutions emerge from your judicious study of discernible reality.'' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. ''That's not the way the world really works anymore,'' he continued. ''We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.''

This is by now a notorious quotation (although I think there's an element of validity to what the aide was saying: the water in the tank is altered by the elephant stepping into it).  Now flash forward to the spring of 2007, and the U.S. Supreme Court's annual spring ritual of releasing opinions, among them the recent Texas death penalty cases.   (See post 263.)  As described by Orrin Kerr over at the Volokh Conspiracy, one of the cases

considered whether the Texas courts had misapplied "clearly established" U.S. Supreme Court law in a death penalty case.  ... The majority wanted to grant relief, so they tried to make the law seem "clearly established" when it really wasn't. To do this, the majority had to get a little creative in what kind of U.S. Supreme Court law it thought could "clearly establish" the law. Of particular note, today's majority opinion by Justice Stevens twice cites a dissent Justice Stevens wrote in a 1988 case for authority that a particular view of the law was "clearly established."

  At the end of his dissent today, Chief Justice Roberts mocks the idea of getting clearly established law from a dissent. Here's the last paragraph:

      Still, perhaps there is no reason to be unduly glum. After all, today the author of a dissent issued in 1988 writes two majority opinions concluding that the views expressed in that dissent actually represented clearly established federal law at that time. So there is hope yet for the views expressed in this dissent, not simply down the road, but tunc pro nunc [that is, with retroactive effect]. Encouraged by the majority's determination that the future can change the past, I respectfully dissent.

But there is one sense in which last month's majority opinion was entirely accurate when it described Stevens' dissenting opinion of 19 years earlier as a source of "clearly established" law.  And that sense is this: a majority of the justices in 2007 said it was.

In the strictly-hierarchical judicial system, what five or more justices of the Supreme Court say is indisputably true, regardless of whether it has any basis in objective reality.  So therefore it's true that Stevens' dissent clearly established the law in 1988, even though it so clearly didn't.  When the Supreme Court acts, it creates its own reality. 

But was Roberts revealing himself to be part of the reality-based community, or did he use reality for the same reason a Neandertal used a given stick, because it was the handiest bludgeon with which to attack his enemy?

Comments

[rawbone]

I really can’t let the opportunity pass to respond to what has quickly become a commonplace (at least among observers on the right) – that Roberts’ dissent in Abdul-Kabir and Brewer reveals those decisions to be horribly unprincipled because no one could seriously accept that the underlying constitutional rule of decision was “clearly established” when the state courts acted.

Let me begin by acknowledging that Stevens shouldn’t have cited Franklin. That’s true even though his point is exactly correct – that in Franklin a majority of the Court (2 concurring, 3 dissenting) expressed the view that the former Texas capital sentencing scheme would operate unconstitutionally if applied to evidence that had relevance to the defendant’s moral culpability outside the scope of the narrow inquiries into whether he killed “deliberately” and whether he would probably be dangerous in the future. Moreover, such a reading was the only one that could harmonize Jurek with the subsequent decisions in Lockett and Eddings. Since the plurality carried the day in Franklin, however, and used language broadly supportive of Jurek, Franklin doesn’t “clearly establish” anything for 2254(d) purposes, and Stevens rightly opened himself to ridicule for making that argument.

But it’s equally exactly true that the premise necessary for Abdul-Kabir and Brewer to prevail in federal habeas was clearly established by Penry I in 1989. Penry I held, essentially, that in cases where the defendant’s mitigating evidence tends to support a “yes” answer to the “future dangerousness” question, some kind of additional instruction on mitigation is required by Woodson/Lockett/Eddings (to permit a reasonable juror to express the conclusion, “Yes, the defendant is likely to be dangerous in the future because he suffered abuse as a child, but I think his experience of deprivation and mistreatment reduces his moral culpability to the point where a death sentence is excessive”).

Neither of the two cases the dissenters claim muddied the waters regarding Penry I (Graham and Johnson, both in 1993) involved that kind of mitigating evidence. And that leaves aside the fact that Graham was a Teague case involving a defendant whose conviction became final in 1984, five years before Penry I, and thus couldn’t claim the benefit of that decision (in other words, given Teague it was no surprise that Graham lost, and that result says nothing about what rule Penry I “clearly established”). Moreover, Johnson (written by Justice Kennedy, who also wrote Saffle) emphatically said that “Penry [I] remains the law and must be given a fair reading.” The Court strongly hinted at what that “fair reading” would be when, after affirming Johnson’s death sentence, it GVR’d about a half-dozen Texas cases for further consideration by the Texas Court of Criminal Appeals (“CCA”), while denying cert in a much larger number of other Texas cases that had been held pending Graham and, later, Johnson. All the cases that were GVR’d involved mental impairment of one kind or another. None of the cases that were cert-denied did.

Both Abdul-Kabir and Brewer involved evidence that the defendant was mentally impaired and had been mistreated as a child. All the CCA had to do was decide whether those cases were more like Penry I (a case involving evidence that the defendant was mentally impaired and mistreated as a child) or more like Graham/Johnson (two cases about teenage defendants who did not suffer from mental impairment and had no history of childhood abuse). Even given the vagaries of so-called “legal reasoning,” that was an easy call and the CCA got it wildly wrong (probably willfully, though that’s a different question). Given the facts of these cases, the constitutional rule of decision was absolutely “clearly established,” try as Roberts might to dodge that commonsense result.

I should add that I generally find your blog thought-provoking and well-written. But there’s no warrant for singling out the opinions in Abdul-Kabir and Brewer for special criticism if your only point is the (unremarkable) observation that “When the Supreme Court acts, it creates its own reality” (Justice Marshall said it better: “Power, not reason, is [the] currency of this Court’s decisionmaking”) (Or Dylan: “The ladder of law / has no top and no bottom”). You could just as easily cite Carhart II, or Payne v. Tennessee, or a hundred other decisions, to illustrate it. My point is simply that the exaggerated applause in the blogosphere for Roberts’ dissent in these cases (most of it from people who – surprise! – favor the substantive outcome Roberts wanted, i.e., two more executions and less federal oversight of state court decision-making) just shows a basic lack of understanding about the facts of the cases at bar and the actual history of the Penry litigation.

[Joel Jacobsen]

Thanks for writing, but the post wasn't about the death penalty, and still less about death penalty law. Then again, I don't think the case had much to do with either the death penalty or the law, either. See post 263.

Don't you find it even a tiny bit unsettling that two branches of government are in the hands of people who think reality is optional?