Under the law, the appeals court must affirm that denial by a district court unless it’s clearly wrong. The prisoner must show that “jurists of reason” could disagree with the judge’s ruling.
The appeals court panels said no such judge could agree with Buck: “Buck has not made out even a minimal showing that his case is exceptional.” It dispatched Abbot’s change of heart in a footnote: “Because it does not change the outcome of this appeal, we need not explore whether such a promise was made or how explicit it was.” No “jurists of reason” could disagree, the panel held.
The panel opinion was by Judge Jerry Smith, who during his three decades on the bench has emerged as a kind of appellate Judge Roy Bean. In 1996, Smith wrote an opinion overruling a Supreme Court decision on affirmative action, on the grounds that the Court probably didn’t really stand behind it. (Reasonable appellate judges ordinarily understand that they don’t get to overturn Supreme Court opinions.) Smith’s decision was repudiated by the Court in two subsequent cases.
While the Supreme Court was considering the Affordable Care Act “individual mandate” case, Smith ordered Attorney General Eric Holder to write him a letter explaining political comments by President Obama. (Reasonable appellate judges ordinarily understand that the president and the United States are not the same thing; when the U.S. is a party to a case, the president isn’t, and is thus not subject to the Court’s political supervision.) But even for Smith, there was something breathtaking about his breezy assertion that “jurists of reason would not debate that Buck has failed to show extraordinary circumstances justifying relief.”
Well, flashback to 2011, when the Supreme Court rejected Buck’s first petition. Two justices—Justices Sonia Sotomayor and Elena Kagan––dissented from that denial of review. In an opinion by Sotomayor, they said: “a petitioner must show that ‘jurists of reason could disagree with the district court’s resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.’ Buck has met this standard.”
This was precisely the question before the Fifth Circuit panel. When Buck asked for rehearing by the full court, the majority denied it. But two judges dissented. “A proper, threshold inquiry into Buck’s claim would have revealed that reasonable jurists could disagree with the district court’s conclusions,” their dissent said.
The bald-faced claim that no real judge could find Buck eligible for relief is belied by the record. Let’s just say it is legal fiction.
Speaking of legal fictions, in that 2011 petition, Justice Samuel Alito, joined by Justices Antonin Scalia and Stephen Breyer, answered Sotomayor’s dissent with a statement that Buck’s case did not warrant review. It was true that the defense had offered Quijano as a witness in other cases, contrary to what the state had claimed, Alito said; but in those other cases, it was the prosecutor who asked the questions about race. “Only in Buck’s case did defense counsel elicit the race related testimony on direct examination,” Alito wrote. Again, Buck did it to himself.
Now the High Court has granted review again, and we will see what kinds of “jurists of reason” sit in our exalted temple of justice, whose entrance is inscribed with one of the greatest legal fictions: “Equal Justice Under Law.”
Correction: This article originally misidentified Buck's first habeas petition as being federal rather than state. We regret the error.
This article originally misstated that Buck's second habeas application was evaluated by the Fifth Circuit. We regret the error.