This Is Kennedy's Court—the Rest of the Justices Just Sit on It

Two cautious 5-4 rulings on criminal procedure show just how much influence the Supreme Court's swing vote has in shaping jurisprudence.
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You could almost hear the disappointment of the earnest and the eager Tuesday morning when the United States Supreme Court issued two rulings that were not its long-awaited decisions in the Voting Rights Act case, the affirmative action case, the Defense of Marriage Act case, the Proposition 8 case, or the (breast cancer) gene-patenting case. There are now just over four weeks to go in the term -- it almost certainly will end the last Thursday in June -- and there are 28 cases, including the doozies above, that have not yet been officially resolved.

But the two decisions the justices did offer Tuesday were interesting nonetheless for what they tell us about the Court and about its approach to criminal procedure. They remind us of the occasional gulf between Justice Anthony Kennedy, the Reagan appointee and perpetual swing voter, and the rest of the Court's conservatives. They highlight the withering contrasts between the Roberts Court and the Warren Court. And they suggest that the justices are of different minds when it comes to finding a workable balance that faithfully protects the constitutional rights of defendants while still ensuring that the guilty are justly punished.

The cases came from Michigan and Texas, respectively, and in each instance Justice Kennedy swung with the Court's four liberal justices to make it slightly easier for condemned prisoners to get help from lower appellate courts when they challenge their convictions or sentences. In each case, too, the majority opinions, limited though they were to get Justice Kennedy to sign onto them, generated heated dissents from the Court's conservatives. Even on the margins, it seems, this is a divided, fractured Court when it comes to cases brought by aggrieved defendants who got raw deals from their trial attorneys.

When I say "slightly easier" for the prisoners, I mean it. In McQuiggin v. Perkins, the Court, by a 5-4 vote, declared that some prisoners who claim they can prove they are innocent may be able to overcome one of the high procedural hurdles to judicial review imposed upon them by the Antiterrorism and Effective Death Penalty Act (AEDPA), the Clinton-era federal statute enacted to curtail frivolous appeals. For the majority, Justice Ginsburg wrote that the new "exception" to the statute would have to be narrowly defined and applied and that it likely wouldn't apply to help Floyd Perkins, a convict who claims he's innocent of murder.

Meanwhile, in Trevino v. Thaler, the Court by a 5-4 vote marginally broadened opportunities for federal procedural review of cases in which state prisoners allege that their trial lawyers have been incompetent. Writing for the majority, Justice Breyer wrote that such additional federal protection was necessary in Texas because the state's procedural system -- "as a matter of its structure, design, and operation, does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel on direct appeal." It's hard to know which man, Perkins or Carlos Trevino, got worse representation. But it's close.

In McQuiggin, the Court recognized the failings of the statute and took a tiny step to begin to remedy some of the worst injustices that have occurred as a result of the way the AEDPA has been enforced for the past 17 years. In Trevino, the Court recognized some of the more patent absurdities of Texas' criminal justice system, the nation's outlier. Neither ruling comes close to guaranteeing that either prisoner is ever going to get any relief. By its terms, neither ruling can be applied broadly. But still the Court's conservatives issued blistering dissents.

In McQuiggin, using language Justice Ginsburg labeled as "bluster," Justice Scalia roared his disapproval. "One would have thought it was too obvious to mention that this Court is duty bound to enforce the AEDPA, not amend it," he wrote. "The Constitution vests legislative power only in Congress, which never enacted the exception the Court creates today. That inconvenient truth resolves this case." The justice then bemoaned the new cases that would arise as a result of the opinion -- "dead weight," he wrote, on a system "already creaking at its rusted joints."

That was the theme Chief Justice John Roberts emphasized in his dissent in the Trevino case which was joined by Justice Samuel Alito. The new standard employed by the Court's majority was "so opaque and malleable," the Chief Justice wrote, that it constitutes an "invitation to litigation" that it would generate "years of procedural wrangling" that would "undermine the finality of sentences necessary to effective criminal justice." Justice Scalia wrote his own scornful dissent in Trevino which was joined by Justice Clarence Thomas. It was just a few paragraphs long.

In many ways the dissents here are more telling than the majority opinions. They exhibit no recognition of the demonstrably unjust standard the Court has applied to determine "ineffective assistance" of counsel cases. They acknowledge none of the history of defiance Texas and the lower courts have shown to Supreme Court guidance on criminal procedure. If you read just the dissents you would think that the criminal justice systems in Texas and Michigan were humming along, smoothly, with criminal defendants routinely receiving competent counsel. You would think that the AEDPA is some paragon of justice. It's just not true.

And it's not to say that the majority rulings here aren't telling, too. We see in their obvious limitations Justice Kennedy's unease about moving too far back toward the center of criminal justice jurisprudence. He clearly didn't want to make it too easy for aggrieved men like Trevino and Perkins to get new rounds of federal appellate review. He clearly didn't want to unravel too much of what the Burger Court, and then the Rehnquist Court, and now the Roberts Court have done to undermine what the Warren Court did half a century ago. Decisions like these remind us that, right now, it's the Kennedy Court, and may be for quite some time.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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