Metro fare from Farragut North to Union Station: $1.35
World's smallest bag of Cheez-Its from Supreme Court cafeteria: $1.65
Caribou coffee spilled all over pants: $1.85
Replacement pants to wear to oral argument: $29.99
Getting to watch David Souter wigging out in true New England fashion: priceless.
Nobody is wearing buttons on their lapels at this morning's oral argument in Carey v. Musladin. The case probes whether jurors were improperly influenced by buttons worn by the family of the victim at the criminal trial of Matthew Musladin. It's probably a good thing that nobody is wearing buttons, because just about every judge who has reviewed the case and the majority of the justices who speak today agree that buttons prejudice jurors. As Justice Stephen Breyer puts it this morning: "Every judge in this case says wearing buttons is a bad idea. For obvious reasons … . And at some point … does it not become pretty clear that it's pretty unfair and unconstitutional?"
But the question for the court isn't whether it's a bad idea to allow families to wear buttons with the pictures of victims. The question is whether judges even get to say it's a bad idea—and whether a judge's failure to put a halt to the practice violates an established constitutional rule. It seems today that not even the most liberal justices, except Souter, think there's a role for judges to play here. And that seems to make Souter even more squirrelly. Indeed, he seems to have fallen victim to the notion that if you just keep browbeating appellate counsel to concede that the answer is "obvious," you might actually make it so.
The story begins in San Jose, Calif., in May 1994, when Musladin arrived at the home of his estranged wife Pamela and her new fiance, Tom Studer, to pick up his 3-year-old son, Garrick, for a weekend visit. The couple had been through an ugly custody battle, and as the child was handed over to his father, Musladin knocked Pamela to the ground. Studer was shot in the altercation. Musladin claims self-defense, while the state argues that he shot to kill. Experts on both sides agree that Studer died from a ricochet shot.
According to the 9th Circuit opinion that the justices have to work with today, Studer's family wore buttons (2 to 4 inches in diameter) on each of the 14 days of the trial, and the judge refused to stop them, despite the objection of Musladin's lawyers. Musladin was convicted of first-degree murder and sentenced to 32 years to life in prison. He appealed, first to the state court of appeals. It determined that, "While we consider the wearing of photographs of victims in a courtroom to be an 'impermissible factor coming into play,' the practice of which should be discouraged, we do not believe the buttons in this case branded defendant 'with an unmistakable mark of guilt' in the eyes of the jurors." In short, said the reviewing court, this was a mistake, but not bad enough to reverse the conviction.
After exhausting his state-court appeals, Musladin turned to the federal courts. The lower court denied him. He hit three cherries when he got to the 9th Circuit Court of Appeals.
Under the 1996 federal statute known as the Antiterrorism and Effective Death Penalty Act, federal appeals courts can't second guess state-court decisions unless they are "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." There is no Supreme Court case law on the books pertaining to influencing jurors with buttons, only some general precedent prohibiting the state from dressing defendants up in prison grab and shackles. That makes proving that inflammatory buttons are somehow "clearly established federal law" somewhat problematic.
So, one problem facing Musladin is that the 9th Circuit seems to have used 9th Circuit case law to alter the Supreme Court's AEDPA test. Justice Anthony Kennedy seems unbothered by this, suggesting to Gregory Ott, the deputy district attorney from California, that it would hardly make sense for the California courts to ignore their own precedent. Justice Ruth Bader Ginsburg asks whether reviewing courts are just meant to "exclude entirely … any federal court of appeals decisions."
"Yes," replies Ott.
"So, the only thing that is proper to look at," says Ginsburg, "are the decisions of this court, and if you don't have a case on all fours, as we have no buttons case, then that's the end of it?" Yup.
Kennedy asks Ott what he thinks about banners.
"I haven't seen a case involving banners," replies Ott.
"And I think I know why," retorts Kennedy. "Because it affects the atmospherics of a trial."
Justice Antonin Scalia notes that "tank shirts and beanie hats" are also not allowed at trial.
Kennedy wonders whether anything the court says at this point could turn the justices' general sense that it's wrong to allow buttons at trials into a "clearly established law."
"Supposing," he says, "that we all thought that this practice in this particular case deprived the defendant of a fair trial, but we also agreed with you that AEDPA prevents us from announcing such a judgment. What if we wrote an opinion saying it is perfectly clear there was a constitutional violation here, but Congress has taken away our power to reverse it. Then a year from now, the same case arises … could the district court follow our dicta?"
No, says Ott.
Makes you wonder why we have judicial review in the first place, huh?
Here we pause for another little chapter in the Seduction of Anthony Kennedy. As Kennedy speaks, Breyer nods so vigorously, I want to call in a chiropractor. Everybody seems so desperate to get Kennedy on their team these days, you half expect Clarence Thomas to climb up into his lap and start stroking his hair.
Around now is when Souter comes up with his Hypothetical That Will Not Die: What if, instead of wearing a button with a picture of the victim, the family were all wearing buttons that read "Hang Musladin." Should the defendant get a new trial? Chief Justice John Roberts and Scalia helpfully tell Ott that the answer to that question should be "no." So he says, not necessarily.
Souter won't let go. He asks several times why Ott won't concede that buttons are improper, then adds, "Is there any question in your mind that allowing the family members to display this message to a jury" raises an impossible risk of bias? Admit it. Say it. Concede it. Ott can barely speak. When he does it's to say that the hypo is not this case.
David Fermino, representing Musladin, quickly gets pinned by Roberts, who seems to be of the impression that there is no difference between a victim's family that wears buttons and one that just sits there. "A typical jury is going to understand that the victim has a family and that they're going to be sorry that he's dead," the chief justice says. Later, he asks the same question about a family that wears black, and Kennedy wants to know about a family that weeps openly.
Souter answers for Fermino: Crying and wearing black are what victims' families naturally do. Going out of one's way to wear buttons is not. "I view the wearing of buttons as abnormal … and intended to get the jury's attention." Then he offers a long soliloquy mourning that no other court has agreed with his conviction that buttons are bad. "I'm raising a question about my own judgment in relation to the fact that no other court seems to have come to that conclusion," he says.
It's like Hamlet on the ramparts. You half expect Fermino to come back with: "Was there a question in there?"
Considering that much of the court considers the buttons to be unseemly at best and prejudicial at worst, this might be a close case. Except that what they think about the buttons doesn't matter anymore. Congress has told the courts to butt out, and this court is learning to do just that. No wonder Souter is having some sort of existential/constitutional crisis. Who wants to schlep all the way down from New Hampshire to hear a case you're not even allowed to decide?