Per Curiam Opinions: AKA Justice Kagan’s Emerging Role in Pimp-Slapping the Sixth Circuit

Sixth Circuit judges should be required to attend a CLE on the Antiterrorism and Effective Death Penalty Act.  To put it mildly, the Circuit rarely applies the law correctly.  Today, the Court issued another broadside to our Nation’s most special circuit regarding how to apply 28 U.S.C. § 2254.   But this one was interesting, in that it intimates an evolution in the Chief’s assigning strategies and in Justice Kagan’s role.

To be clear, correcting the Sixth on habeas relief seems to have become the Supreme Court’s “do the dishes” version of a menial but necessary task.  However, until now, the assignment has gone to a justice who seemed to ideologically align with the underlying correction—see, e.g., White v. Woodall (2014) (Scalia, J., writing for the Court, joined by Roberts, C.J., and Kennedy, Thomas, Alito, and Kagan, JJ.).  Kagan’s joining of the Woodall opinion was noteworthy enough—it was an ‘ideological’ ‘break’ on the sort of issue where those breaks are less common.  If doubt existed that Kagan was her own justice, Woodall was a quietly important step in silencing it.

Today seems to have advanced what Woodall started.  The Supreme Court issued an anonymous  per curiam opinion reversing yet another Sixth Circuit habeas grant, in Woods v. Donald, No. 14-618, 575 U.S. ___ (2015).  The opinion is unsigned, but Justice Kagan’s fingerprints are all over it.  The writing style is vintage Kagan—the opening paragraph is a direct, three sentence statement with a clear answer (narrow the field to Kagan, Alito, Scalia, or the Chief).  The facts section isn’t evocative or overly prejudicial, but it’s conversational and informal (strike Alito, Kagan/Chief/Scalia left).  Describing a pickpocketing, the opinion describes a criminal “rifl[ing] through” a pocket (strike the Chief, it isn’t his style of diction).  Finally, the opinion quotes prior opinions one or two words at a time—a practice more common to Kagan than to Scalia.  Woods, at *6 (“Because none of our cases confront ‘the specific question presented by this case,’ the state court’s decision could not be ‘contrary to’ any holding from this Court.”).  This is classic Kagan diction.  To paraphrase Sam Seaborne, Elena Kagan is the author of the unsigned note.

So what does it mean?  Per curiam opinions aren’t the things that lore is made of, but they make a difference.  They still move the law.  And assignments on them still matter.  It seems likely that on the issue of 2254 habeas relief, Justice Kagan has gained the Chief’s trust (the Chief having assigning powers on any opinion in which he’s in the majority).  I don’t know if this is an aftershock of White v. Woodall, or if the Chief is purely divvying up dogs.  But the per curiams to this point seem to go to his allies, at least by guessing off of writing style.  I’m willing to bet that Justice Alito wrote Grady v. North Carolina today (very clean, clinical, and moderately libertarian), and the Chief almost certainly wrote Glebe v. Frost last term, which dismissed the Ninth Circuit’s habeas reasoning in a singularly crippling fashion:  “By extracting this ‘conce[ssion],’ the Ninth Circuit continued, the trial court ‘relieved the State of its burden of proving guilt beyond a reasonable doubt,’ ‘shifted the burden of proof to Frost,’ and even ‘directed [a] verdict on guilt’—all ‘unquestionably structural [errors].’ Id., at 917–918.   No.”  Indeed, the only per curiam assignment that the Chief seems to have tasked to an ideological adversary recently—Justice (probably) Sotomayor’s opinion in Tolan v. Cotton (last term), No. 13-551, was the rare per curiam that drew a concurrence (from Alito and Scalia).

Somehow, the Chief has come to trust Justice Kagan, at least on 2254 deference.  I don’t know if this is her pulling away from the Ginsburg/Breyer/Sotomayor pack, or indeed if she’s just ideologically in a different place than those justices (it’s worth mentioning she’s well to Breyer’s left on Fourth Amendment jurisprudence).  But on the small stage, this matters for habeas law.  On the medium stage, it matters for the Chief’s assigning tendencies, and if he feeds ideologically-moderate cases to Kagan and trusts that she can hold five against the odds (she can, because she’s amazing and perfect and possibly secretly a unicorn).  And a broader meta-principle that per curiam speculation throws into contrast is the unholy-small amount of information we have to work off of when we evaluate the Court.  Dealing with 2015 SCOTUS is like dealing with the NBA before Sport-Vu cameras—yeah, you can kinda see what’s happening, but the statistical relationships are murky at best.  It would be much nicer to just see who’s closing out on whom, who shoots lights-out from three, and who’s writing the damn per curiams.  Parlor games are fun, but they don’t replace understanding your government.

Per Curiam Opinions: AKA Justice Kagan’s Emerging Role in Pimp-Slapping the Sixth Circuit

Predictive Betting and a Freaky Friday Power Structure

Speculating on the outcome of upcoming impact cases like Burwell and Obergefell—as well as some recent sneaky-impact cases like Noel Canning and Bond—produces counterintuitive results.  It would at least make sense to think that the importance of case assignments could flow in order of seniority, or at least close to it.  And it’s doubly so on this Court—some of the senior justices are so powerful and so publicly respected.  Justice Scalia has been perhaps the most vocal conservative thought leader over the past 25 years and is the patron saint of originalism and textualism.  Justice Thomas floats ideas that are initially insane and then command five votes ten years later.  Compare Printz (an individual understanding of the Second Amendment is ludicrous), with Heller (on second thought, yes).    Justice Sotomayor has the most compelling biography on the Court in a landslide, and she is the only Justice who routinely reduces non-lawyer audiences to tears and inspires the masses.  And Justice Ginsburg is easily the biggest celebrity on the current Court—I’m pretty sure that no prior Justice, with the exception of the exceptionally foxy Chief Justice Taft, has had his or her own t-shirt line.

But these celebrity justices don’t necessarily get the plum assignments, at least anymore.  And more importantly, they aren’t who I expect to wield power on the Court, day to day.  That’s the weird thing—to a T, the distribution of who I expect to get the bell-ringing cases and do work changing opinions varies almost inversely to the celebrity of the justices.  Let’s briefly power-rank the top four in a holistic sense:

  • The Chief: Good God.  There hasn’t been a more powerful, charismatic Chief since Warren.  He’s an absurd writer, he’s smart, he’s handsome, he’s a good administrator.  And he has a preternatural sense for when to assign and when to take it himself.  The Chief, over the past ten years, has absolutely—but quietly—alchemized federal law.  He assigns himself some barnburners:  see McCutcheonParents Involved.  He uses his assignment power to nail other cases—assigning Alito the final two cases of October Term 2013 was a shrewd and brilliant move (Hobby Lobby and Harris v. Quinn).  And perhaps most importantly, the Chief subtly moves federal law in his direction in even factually banal cases.  Bond v. US was kinky (a jilted wife poisoning her husband’s lover), but the issue presented was a relatively tame application of the Commerce Clause.  The Chief used the threat of the three-fold conservative hydra to cosign Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan to a pretty damned important re-understanding of interpretational canons—announcing in the process that all federal law must be interpreted to accord with limited federal power.  That’s not a bad day’s work for one lady who poisoned another lady in Pennsylvania.  The Chief is a wizard.
  • Justice Kennedy: He’s been covered to death.  Kennedy reliably holds the swing vote on cases that hit the New York Times editorial page.  Everyone knows that he’s a center-right Justice; he’s a drum-banger on free speech and campaign finance, has shifted steadily right on abortion, is a toss-up on the death penalty, and leans left on gay marriage.  He is essentially Justice Alito’s equivalent on women’s rights, and he is only narrowly more centrist on affirmative action and voting rights.  Kennedy is easy to predict, but he draws plum assignments because the cases in which his ideology centers him are the cases people care about.
  • Justice Alito: The thinking man’s Scalia.  Justice Alito scares liberals more than anyone except the Chief.  He’s essentially the Chief’s further-right brother—a brilliant, likable-if-not-charismatic, clear and effective writer who articulates an extremely hardline conservative vision.  I don’t get the impression that any current Justice is arrogant, but Alito has bided his time exceptionally well—he’s been dinged in the press for an occasional bout of ‘rudeness,’ but he has never been perceived to angle for assignments that were above his status among the Nine or to try to outstep his bounds.  In this one realm, he’s the opposite of Kagan—Alito never tried to make a splash in “dog” cases.  But they were still quietly brilliant—in talking to a group of 2Ls, I used his Atlantic Marine opinion on federal venue choice provisions to illustrate a perfectly clean, tidy, perfect opinion that didn’t involve abortion or execution.  He’s a brilliant technocrat, but when you turn him loose on a politically-charged opinion:  look out.  Alito lets loose quiet, wry fire-bombings.  Hobby Lobby, reviled as it was, is a brilliant opinion.  And perhaps even more pronounced is the difference between his Windsor dissent and Scalia’s:  Scalia’s reads as the angry invective of another generation, genuinely perturbed at the prospect of equal rights; Alito’s is the calm, quiet introspection of a cautious man not eager to topple the social order.  The difference is either brilliant or insidious, depending on your perspective.  One thing is for sure:  if the Chief feels his clerks are overworked, and needs a thoroughly conservative opinion nailed, Alito is the go-to guy for about 25 years.
  • Justice Kagan: Up-and-coming.  She’s the only person on the Court that gives the Chief a run for his money in terms of raw IQ.  She’s charismatic, she’s personable, and she’s bred to sway colleagues.  With due respect to Justice Ginsburg, the biggest home run for a Democratic president since William Douglas.  What a freakin champ.  The Chief already seems to like her, and he trusts her with marginally big opinions (somewhat better than the dogs she should be getting at this point).  But what really sells her influence so far is not her majority work; it’s what she’s done in dissent.  She’s the spokeswoman for the left when they absolutely have to nail a dissent and can afford to give it to someone other than Ginsburg:  Ginsburg still takes the 10/10 opinions (Shelby County; NFIB), but she passes off the 9/10s to Kagan (Arizona Free Enterprise Club; County of Greece).  Even in the sneakily important 6/10s, the dissent trusts Kagan to nuke the majority (American ExpressGenesis Healthcare).  More than that, Kagan’s willingness to cross lines has gotten genuinely interesting—she was the only Democrat to join the majority in White v. Woodall, a sneakily-important 2254 habeas case, and she authored a dissent joined by Scalia, Thomas, and Kennedy in Yates v. US.  Just in passing, it was the best dissent (in purely technical terms) authored in the past 5 years. And it was a damn bold move—the opinion addressed the same interpretational canons that will arise in King v. Burwell, and Kagan took some pretty anti-ACA stances in the process.

These are obviously one person’s arbitrary rankings, and who knows if they accurately reflect the Court.  But it’s interesting to note that the apparent power structures at One First flow entirely independently of outside celebrity—indeed, they almost seem to run contrary to it.  The Justices we think about when asked to name some sitting on the Supreme Court are not the ones who wield true power.  Nobody except the Justices and the clerks know anything, but it seems smart to pay attention to the quiet people, to listen to those who talk less.  They’re the ones shaping the law.

Predictive Betting and a Freaky Friday Power Structure