FW: The Supreme Court Today

[Margo Schlanger]

Thanks for this post -- it's very interesting.  Two small thoughts:

1)  I don't think there's much of a practice, any longer, of a "courtesy
fifth," except (and even here, it's my impression that it's not always,
though I have no counterexamples ready in mind) in the rare circumstance of
4 votes to grant cert., rather than just to stay.

2)  There are a number of justices who will vote contrary to the majority
on a stay without noting their dissent for the record.  So three noted
dissents doesn't mean the vote was 6-3.  It could easily have been 5-4.

Margo Schlanger
______________________
Margo Schlanger
Assistant Professor of Law
Harvard Law School
Cambridge, MA 02138


At 11:26 PM 3/26/01 -0500, you wrote:
>At 3:59 PM -0500 3/26/01, Edward Hartnett wrote:
>>Mark Tushnet had asked earlier if anyone knew what was going on with
>>this case in which the court vacated the stay issued by the court of
>>appeals and then issued its own stay.   Not having seen any answer
>>(maybe I missed it) but quite interested in it, I'll try asking
>>again.  Anyone know what's up with this?  Did Richardson's
>>application for a stay reveal information (perhaps a claim about the
>>state of the record?) that was not revealed in opposition to the
>>state's application to vacate the court of appeals' stay?
>
>The 8th Cir. stay was granted pending the SC's ruling in Penry II
>"and until further order" of the 8th Cir. just hours after the 8th
>Cir. denied a stay of execution in connection with a petition to file
>a successive habeus petition. The issue below was whether Penry I
>entitled Richardson to introduce a psychiatric evaluation prior to
>sentencing by the judge. But the issue is complicated by the fact
>that the judge did the sentencing pursuant to Missouri law after the
>jury was unable to agree on a sentence. Richardson's counsel declined
>to introduce the psychiatric evaluation at the sentencing hearing
>before the jury (because it had some harsh things to say about
>Richardson), and the 8th Cir. ruled that the judge was not required
>to re-open the record and receive the evaluation after he took over
>sentencing when the jury failed to agree. At the end of the day, and
>it all happened during one day: the 8th Cir. refused to stay
>execution based on Penry I, but agreed to stay execution pending the
>outcome of Penry II; the SC vacated the decision to stay execution
>pending Penry II, and agreed to stay execution pending disposition of
>the challenge to the 8th Cir. rejection of the Penry I claim. The
>Supreme Court vacated the 8th Cir. stay 6-3, and granted its own stay
>5-4.  There were likely 4 votes on the merits of the SC stay, and a
>courtesy vote to preserve jurisdiction by preserving the petitioner.
>
>Maybe two things are going on. A partial explanation may be that the
>practice of providing a courtesy vote to preserve SC jurisdiction
>does not extend to ruling on the state's motion to vacate the 8th
>Cir. stay -- in which case there were not enough votes to uphold the
>8th Cir. stay, but there were enough votes to grant the SC stay.
>Whether that's right or not, it doesn't explain why there were 6
>instead of 5 votes to vacate the 8th Cir. stay. At least one justice
>voted for the SC stay on the merits and voted to vacate the 8th Cir.
>stay. The fact that the 8th Cir. stay preserves the 8th Cir.'s
>jurisdiction to revisit the case in light of Penry II, rather than
>pending the grant or denial of cert on the Penry I claim, may be the
>reason. It preserves jurisdiction which the 8th Cir. no longer has,
>pending a decision which the SC might render before or after it
>grants or denies Richardson's petition. Richardson doesn't need a
>stay pending SC disposition of Penry II -- he needs a stay pending SC
>disposition of his own case. Also, the 8th Cir. stay, by its terms,
>required the 8th Cir. to await the decision in Penry II even if the
>SC sooner denies Richardson's petition for cert. That allows for the
>awkward possibility that the SC might deny cert, implicitly ruling
>that he doesn't have a claim and should die, subject to an 8th Cir.
>ruling that Penry II requires re-sentencing. If the SC wants the 8th
>Cir. to revisit the case in light of Penry II, they will grant,
>vacate and remand. But they don't want to be second-guessed by the
>8th Cir. if they deny cert.