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Friday, October 18, 2002
Predict-o-Rama


As Sam Heldman points out, his Supreme Court prediction game now has a host of imitators: There is the Supreme Court Forecasting Project, which claims that it will compare the predicitons of legal "experts," and a statistical "political science" model. Looking over their predictions, at least two out of the three experts agree with my prediction on nearly every case. Of course, NONE of their experts predicted that the Ford case would be REVERSED (like I did). The only problem with this site is that they haven't posted any of their "statistical" predictions and we are already through the first two weeks of the term, and they have failed to post some "expert" predictions on cases that have already been argued.


Next there is the Fantasy Supreme Court League, in which there is a cash prize for the best predictor of nine cases. The contest gives a one-paragraph description of the case then invites you to vote thumbs up or thumbs down. It's like the barside video game school of Supreme Court predictions. The "tie breaker" is which Justice voted with the majority in the most cases. Here's a prediction: If you choose anyone other than O'Connor or Kennedy as your tie breaker, you haven't been paying attention. The contest claims to have been featured on CNN's Headline News. How does that happen?


In any case, I think Sam Heldman's contest is still the best game for thinking people. The Forecasting Project can't seem to get its ducks in a row, and the Fantasy Supreme Court League is too silly to take seriously.





Thursday, October 17, 2002
No. 01-1229 Pierce County v. Guillen



Here is another states' rights case. I say "another" despite the fact that it's the first one I have written about here because the court has been taking a few of these every year. The case is about federal funds for improving dangerous intersections. Rather, the case is about states' rights, but arises in the federal funds for dangerous intersections context.


At some point, Congress decided that states should compile data on potentially dangerous intersections and railroad crossings, and that they could apply to the federal government for grants to fix these intersections. With a mighty "Woo hoo!" plaintiff's lawyers lined up to get the documents wherein the state essentially admits that intersections are dangerous, and sought out people injured in accidents at those locations so they could sue the states involved. Congress scratched its proverbial head and said, "Er, we hadn't thought of that, how about if we make it so those records can't be discovered in federal or state courts?"


And so they did. State courts were a little reluctant to interpret the prohibition too broadly, so a number of courts held that while any information specifically compiled in order to apply for one of these highway grants was not discoverable, information (like accident reports) that was just collected for that purpose was still discoverable. Congress, in turn, amended the law to say, "No, we meant compiled or collected, this means YOU state courts who have ruled otherwise."*

    * Note that the quotes are being used for rhetorical purposes. Congress didn't actually collectively or in legislation say these things, although they did insert "or collected" into the law.


So, along come some plaintiffs whose family members died at intersections that Washington has applied for a federal grant to improve. The Washington Supreme Court decided that the federal law specifically preempted state law with regard to the discoverability of documents and that the law was intended and did cover the accident reports sought by the plaintiffs. The court found, however, that the law was not a valid exercise of the Spending Clause.


The Washington Supreme Court is flat out wrong on this. The court stated, "United States Supreme Court has made it clear that
Congress may [attach strings to federal money] only if those "strings" are also firmly "attached" to
a legitimate federal interest in a specific federal project or program," citing South Dakota v. Dole. As my Civil Procedure professor warned in the first few days of first year classes, "Beware when a court says something is "clear," usually that is a warning that what follows is not at all clear." Looking at the specific page of Dole that the court cites, we find the following in note 3: "[W]e do not address whether conditions less directly related to the particular purpose of the expenditure might be outside the bounds of the spending power." Thus, not only did the Court fail to make it "clear" that strings must be "firmly attached," they expressly declined to decide the level of attachedness necessary. Sorry Washington Supreme Court, you should get a cite checker.


The Court will REVERSE because the law is valid under the Spending Clause.


The Court will not need to reach the Washington Supreme Court's "analysis" of the Commerce Clause and Necessary and Proper Clause arguments and so neither will I, except to say that they are only slightly less wrong than its Spending Clause analysis.


There is also a question about whether individual plaintiffs have standing to raise a state's rights argument where the state participates in the federal funding program voluntarily. Without doing too much thinking about it, I will predict that the Court will find that the plaintiffs had standing to raise these issues, taking the chance that if this is DIGged, I will suffer a wrong prediction.





Wednesday, October 16, 2002
I've changed my mind


On further consideration, because the Court spent most of oral argument in Ford Motor Co. v. McCauley talking about whether it had jurisdiction, and because the ruling DIGing the grant of cert leaves intact the 9th Circuit decision that I predicted the Court would affirm, and finally because I don't think the Court would issue a lengthy opinion just to say "we don't have jurisdiction," I have decided that I predicted the case correctly. After looking over Sam Heldman's prediction on the case, he declined to decide the jurisdictional issue, finding it "equally likely" that the case would not reach the merits.


Thus, I am counting this as a correct prediction for me and an incorrect prediction for Sam. Thus, under my rules (Sam acknowledged in e-mail that I was free to create my own rules), at least when the Court has requested supplemental briefing on an issue, failure to make a prediction on that issue is effectively a prediction that the issue will not affect the outcome. I know this seems self-serving, but I will stick to it if it happens to recur. Incidentally, originally I thought that Sam had predicted the Court would dismiss and that if it didn't dismiss it would reverse. I had planned to count a dismissal as one for each of us and if the Court didn't dismiss I would have given one correct prediction to whichever oucome the Court reached.


In any case, I will need this one because by all accounts my predition on Eldred blew it.


In other news, it looks both Sam and I have correctly predicted the Syngenta decision. The Respondent sat down after 10 minutes because there was nothing more to say. See this article for a description (thanks to Howard Bashman for the link).








Tuesday, October 15, 2002
I love getting news third hand.


While checking to make sure that I am reporting Sam Heldman's predictions correctly, I learned that Howard Bashman and Goldstein Howe had already reported that the Court today dismissed Ford Motor Co. v. McCauley as improvidently granted. Since I have only in the last six months or so learned about cases being "DIGed," I am not sure how to score this. After all, I predicted that it would be dismissed, but for lack of jurisdiction, not because "improvidently granted." Heldman has decided this is neither a win nor a loss. I will agree to that for now, but I'll do more research. Of course, faithful readers (as if there are any of those) might recall that my prediction that this case would be dismissed was itself tenative pending further research. This post is therefore at least likely to be the final word.








Not too busy to post this week's chart, though:









TedSam
Tuesday, Oct. 15
Syngenta Crop Protection, Inc. v. HensonAFFIRMAFFIRM
Sprietsma v. Mercury MarineREVERSEREVERSE
Wednesday, Oct. 16
U.S. v. BeanAFFIRMAFFIRM
Miller-El v. Cockrell.AFFIRMAFFIRM


Great minds, apparently . . .







No. 01-7662 Miller-El v. Cockrell


I think the court will see this case as about whether a state court reviewing a petition for habeas corpus must consider defendant's evidence of the practice and procedure of discriminatory use of peremptory challenges, where the court has found a race-neutral basis for each of the jurors actually excluded. Phrased thusly, I think the court will AFFIRM.


I know this is rather conclusory, but the argument is tomorrow and I am otherwise pretty busy today.








Monday, October 14, 2002
No. 01-704 United States v. Bean


Federal law prohibits convicted felons from posessing firearms. Congress allowed such felons to apply to get their right to own a gun back, but then decided that it would not allow the ATF to spend any money considering those applications. Note also that Congress had provided for judicial review of the determination of whether the felon can get his gun back. The whole controersy is whether, by failing to consider the application, the application was effectively denied and the felon may then obtain relief through the federal courts as provided by the statute. Why, you might ask, wouldn't Congress just repeal the law if it didn't want any felons to be able to get the relief it had earlier decided they should have? Unfortunately, Congress is like a 535-headed hydra and cannot answer such questions. Thus, the Supreme Court must answer the unanswerable question of whether the prohibition of the expenditure of funds on deciding a permit application mandated by another statute acts as an effective denial of the permit such that a federal court may review such denial.


There is plenty of blog controversy surrounding this case, with Howard Bashman predicting that the Court will reverse the Fifth Circuit's ruling that the Federal Courts do have jurisdiction, while Tom Goldstein who is arguing the case for Mr. Bean, clearly feels differently. I think that the court will find that a grant of jurisdiction cannot be repealed this way, and that the court will AFFIRM the Fifth Circuit.





No. 01-6978 Ewing v. California


No. 01-1127 Lockyer v. Andrade


I realize that I have gone suddenly wildly out-of-order because these cases are going to be argued in November, but I had a good reason to review the few materials available on these cases this weekend, so here goes:


These cases present challenges to California’s “three strikes and you’re out” law. Ewing was convicted of grand theft, a “felony misdemeanor” after having two prior felonies. Andrade was convicted of two counts of “petty theft with priors.” Which is a California way of elevating petty theft to a felony. Andrade had two prior burglary convictions, thus the two convictions were his third and fourth “strikes” under the law. Ewing was sentenced to 25 years to life, and through yet another quirk of California law, Andrade was sentenced to 50 years to life. Andrade got 25-life for each of his convictions, and the 25 years before parole have to be served consecutively.


These cases boil down to interpretation of three prior Supreme Court cases. In Rummel v. Estelle, 445 U.S. 263 (1980), the Court upheld a sentence of life in prison with the possibility of parole in 12 years, where the defendant had committed three non-violent felonies. In Solem v. Helm, 463 U.S. 277 (1983), the Court reversed a sentence of life in prison without the possibility of parole, where the defendant had seven non-violent priors. The Court stated three factors that should be considered to determine whether a punishment was grossly disproportionate to the crime. The factors are the gravity of the offense and the harshness of the penalty; 2) the sentences imposed on other criminals in the same jurisdiction; and 3) the sentences imposed on the same crime in other jurisdictions.


Finally, in Harmelin v. Michigan, 501 U.S. 957 (1991), the Court upheld a life sentence for a defendant convicted of possession of more than 650 grams of cocaine. Although there was no majority opinion in that case, Kennedy wrote for himself, Souter and O’Connor that sentences may be evaluated as to whether they are “grossly disproportionate” to the crime. Kennedy focused on the first prong of the Solem case as a threshold, finding that given the gravity of Harmelin’s crime, the punishment imposed by the legislature was not grossly disproportionate. Because the case did not pass this first threshold, Kennedy found it unnecessary to evaluate the second and third prongs. Chief Justice Rehnquist and Justice Scalia would have foreclosed any possibility of “proportionality review,” while the remaining justices would have found the sentence to violate the Eighth Amendment under Solem.


I agree with the 9th Circuit in Andrade, that given the fact that Andrade’s underlying crimes would otherwise be misdemeanors and that his statutory minimum must be served consecutively, his life sentence is grossly disproportionate to his crime and that the Court will AFFIRM the Ninth Circuit’s holding that his sentence is unconstitutional. On the other hand, because Ewing’s crime is always a felony and because it does not implicate the provision that requires minimum sentences to be served consecutively, I believe the Court will AFFIRM his sentence.