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

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