The Supreme Court learns to stay out of this messy business of deciding cases.

Oral argument from the court.
Oct. 11 2006 6:16 PM

Button It

The Supreme Court learns to stay out of this messy business of deciding cases.

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?"

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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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.