Oregon State Bar Bulletin — OCT0BER 2004

Leaving the Door Way Open
A look ahead at U.S. Supreme Court term
By Jeffrey L. Bleich & Anne M. Voigts

In the musical The King and I, the King of Siam discovers with great delight the term "et cetera," and its marvelous ability to let him avoid having to actually articulate all of the specific details or consequences of something he has just pronounced. The King is liberated by the term and adds it to the end of virtually every sentence. For example: "When I sit, you sit. When I kneel, you kneel. Et cetera, et cetera, et cetera!" While the October 2003 term’s pronouncements are memorable in many ways – including the most important campaign finance decision in over three decades, a sweeping decision to invalidate whole classes of criminal sentence enhancements, invalidating (for the second time) Congress’ Internet porn regulations, and substantially restricting the Bush Administration’s claimed powers to imprison people without a hearing during a national security threat – one of the major effects of this term may lie in all of the unexplained "et ceteras." In particular, three sets of cases are noteworthy not just because of the issues that were decided, but because of the way the Court decided them; in each case, the Court’s pronouncements generate equally significant – if not more significant questions — that are certain to confront the Court again. In each of those cases — the Pledge of Allegiance case, the enemy combatant cases, and Blakely v. Washington – their ultimate impact may lie not in this term’s decision, but in the unexplained et ceteras.

Elk Grove Unified School District v. Newdow: "Under God," At Least For Now
Certainly one of the cases to arouse the most public interest – not to mention indignation – in recent years was the Ninth Circuit’s decision holding that the recital of the "under God" portion of the Pledge of Allegiance in public school violated the First Amendment rights of the students. Within hours of the decision, the opinion was denounced in all of the major media by politicians and members of the public who had not even seen the decision. (Indeed, in a not-so-subtle plea for Supreme Court review, a number of politicians assembled on the steps of the Capitol facing the Supreme Court building and recited the pledge in the justices’ general direction.)

While the Supreme Court dampened the furor over the pledge case by granting cert., the Court’s decision did not really resolve anything other than that the wrong person had brought the case. Rather, to use the formal legal term, the Court punted. The Court found that the petitioner, Michael Newdow, lacked prudential standing to assert the rights of his daughter. Prudential standing is a judge-made variety of standing – distinct from the constitutional Article III case or controversy standing doctrine – whereby the Court declines to hear a case because given who the plaintiff is, it well, just wouldn’t be prudent. The Court thus vacated the Ninth Circuit’s decision and got rid of the precedent without resolving the ultimate question.

While the issue raised in the pledge case may seem a narrow one (and one that managed to go 50 years without generating a legal dispute), its resolution might have helped to clear up a particularly complex and confusing area of the law. At least four justices appeared ready to rewrite establishment clause doctrine to resolve this case, but the Court as a whole chose to wait. Rather, the Court simply raised the suggestion that this might all be sorted out one day if and when a proper plaintiff presented the case.

The Enemy Combatant Cases: "Matters That We Need Not Now Address"
This term, the Supreme Court also decided and raised important questions about the legacy of 9/11 in the so-called enemy combatant cases. Those three cases – Rasul, et al. v. Bush, Hamdi v. Rumsfeld, and Rumsfeld v. Padilla – presented in various ways the fundamental question of the constitutional and statutory limits on the executive branch in its handling of the arrest and detention of terror suspects. In its opinions, the Court recognized some limits on that executive power, but left open substantial questions about what those limits were and how to implement those decisions.

In Rasul, the Court addressed the question whether United States courts had jurisdiction to consider challenges brought by non-U.S. citizens – 2 Australians and 12 Kuwaitis captured abroad during the hostilities in Afghanistan, who had been captured by U.S. troops and placed in detention at the Guantanamo Bay Naval Base. The government contended that these individuals were enemy soldiers being detained outside of the U.S. (because Guantanamo is Cuban territory), and thus they were outside of the jurisdiction of the federal courts. The government relied principally on the Supreme Court’s WWII-era decision in Johnson v. Eisentrager, which concerned the treatment of German soldiers. The district court and the court of appeals both agreed with the government that Eisentrager controlled, and had declined jurisdiction.

In Hamdi and Padilla, the Court considered challenges brought by American citizens detained on American soil as "enemy combatants" to their continued detention. In Hamdi, the petitioner was captured in Afghanistan, and then transferred to the U.S.; in the Padilla case, the petitioner was initially detained in the United States as a "material witness" and then kept in detention as an enemy combatant. In both cases, the government asserted that the petitioners were not entitled to counsel or any form of judicial review to determine whether their confinement was lawful or justified.

In Hamdi, the Fourth Circuit conceded that the detention of American citizens must be subject to some sort of judicial review, but rejected the idea that Hamdi’s detention was unlawful, or that he had a right either to counsel or to bring further challenges to his detention. In contrast, in Padilla, the Second Circuit concluded that the president lacked authority to detain American citizens on American soil outside a zone of combat both as a matter of constitutional and federal statutory law. The court of appeals directly challenged the president’s assertion of exclusive power, holding "presidential authority does not exist in a vacuum, and this case involves not whether those responsibilities should be aggressively pursued, but whether the president is obligated, in the circumstances presented here, to share them with Congress."

In a set of decisions handed down at the end of the term, the Court addressed each of these questions, handing the Bush administration a sharp defeat. While concluding that the courts lacked jurisdiction over Padilla’s petition because it had been served upon the wrong respondent, the Court held that Hamdi and the Rasul petitioners were entitled to challenge their detentions (and by implication Padilla if he redirected his petition to the right respondent).1 In resolving those questions, however, the Court in Rasul expressly refused to decide anything other than the immediate question. As Justice Stevens wrote in his opinion for the Court, "(w)hether and what further proceedings may become necessary after respondents make their response to the merits of petitioners’ claims are matters that we need not address now. What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing." Similarly, in Hamdi, the plurality opinion authored by Justice O’Connor held that due process required that a citizen held in the United States as an enemy combatant "be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision-maker." But Justice O’Connor’s opinion left the details of what such an opportunity should look like largely open, including whether review would be in a federal court by an Article III judge. Rather, the opinion observed that there may be "the possibility that the standards we have articulated could be met by an appropriately authorized and properly constituted military tribunal."

In the aftermath of the enemy combatant cases, the government has taken up the apparent invitation to avoid federal court review by setting up a series of combatant status reviews at Guantanamo Bay. Those attempts at military review are already being criticized as inadequate, and raising issues about another round of court challenges. As a result, there is a good chance that the Court will be revisiting the questions it specifically tried to avoid the first time around.

Blakely v. Washington: The Gift That Keeps On Giving
Finally, the all-time champion "et cetera" decision of the term was in this year’s sleeper case, Blakely v. Washington, which held that the right to a jury prohibited state courts from imposing sentences based on factual issues that were never presented to a jury or admitted by the defendant. While this decision seemed pre-ordained by the Court’s 2000 decision in Apprendi v. New Jersey, it immediately produced a howl of confusion arising from the lower courts over whether this decision effectively invalidated all or some of the federal sentencing guidelines. Indeed, the ink was barely dry on Blakely before the Court agreed to accept cert in two different cases to explain to the federal courts what Blakely will mean for the federal sentencing guidelines.

In Blakely, a Washington state prisoner challenged his 90-month sentence on the ground that it was based on a judicial finding above and beyond the facts admitted in his plea, and that had he been sentenced for what he had actually admitted, the maximum term for which he was eligible was only 53 months. Writing for the Court, Justice Scalia concluded that because the facts supporting the petitioner’s sentence were neither admitted by the petitioner nor found by a jury, the sentence imposed violated his Sixth Amendment right to trial by jury. As Justice Scalia’s opinion explained, this ruling was effectively compelled by Apprendi, which requires that any fact – other than that of a prior conviction – that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. In Blakely, the Court thus confirmed the corollary that the maximum sentence that the judge can impose is the maximum fixed by statute for conviction of the facts either admitted or reflected in the jury verdict as proved beyond a reasonable doubt.

In a sharp dissent, joined in part by Chief Justice Rehnquist, Justice Breyer and Justice Kennedy, Justice O’Connor complained that "(i)f the Washington scheme does not comport with the Constitution, it is hard to imagine a guidelines scheme that would." Indeed, she warned, the federal guidelines, as well as the sentencing systems in a number of other states, might well be invalidated under Blakely’s reasoning. If such systems were to be scrapped, the dissent predicted, the very problems such systems were designed to address – namely, excessive judicial discretion and disparity in sentencing – would recur with a vengeance.

Thus, the most significant aspect of Blakely is not what it actually says for prisoners in Washington state, but what it may say for all federal prisoners (and judges) across the country. The tension regarding the continued viability of the sentencing guidelines was already great due to increasing vocal dissatisfaction by federal judges with the sentencing guidelines. Justice Kennedy (one of the dissenters in Blakely) had himself made a remarkable public condemnation of the federal sentencing in his keynote address to the ABA. A prominent district court judge resigned last year based on his unwillingness to impose sentences under the guidelines which he felt were unjust and immoral. And a district court in Massachusetts issued a massive and scathing 177-page opinion finding the federal sentencing guidelines unconstitutional. Since the federal sentencing guidelines operate in a virtually identical manner to the Washington scheme (i.e., a judge is authorized to enhance a sentence beyond the maximum based upon findings that are neither admitted by the defendant nor proven to a jury), its holding places in jeopardy the entire federal sentencing system. This has created nothing short of chaos in prosecutors’ offices and lower federal courts.

In the weeks following Blakely, numerous courts have already weighed in on the question whether Blakely applies to the federal sentencing guidelines, and if so, to what extent and how. Indeed, within days of the decision being handed down, a Utah district court declared the guidelines unconstitutional. However, other courts have held them constitutional or constitutional in part based on a variety of different theories. Indeed, in only a few short months, courts seem to have reached just about every possible result imaginable to the fertile judicial mind. One of the principal issues over which courts have divided is, assuming the applicability of Blakely to the sentencing guidelines, whether the factors that do not enhance a sentence beyond the maximum – i.e., those that permit a downward departure – are severable. Put another way, does Blakely invalidate only upward adjustments and departures, or must the entire sentencing guidelines be invalidated because Congress never contemplated a one-way ratchet in sentence adjustments?

The ingenuity with which Blakely has been applied to federal sentencing cases reflects the fact that there is no single position being adopted by all prosecutors or all defense counsel. Although the government has attempted to argue as a first position that Blakely does not apply to the sentencing guidelines, that position has not gone very far with the federal courts, and so it has almost invariably been forced to adopt alternative lines of defense. At the same time, public defenders have done their best to profit from Blakely to escape the sometimes draconian, one-size-fits-all strictures of the sentencing guidelines. As a result, widely disparate sentences have been handed down in arguably similar cases.

Given the fall-out caused by Blakely’s failure to state specifically how broadly it would sweep, the government filed a petition with the Supreme Court only a month after the decision was issued, asking the Supreme Court to hear two cases addressing the applicability of Blakely to the guidelines on an unusually expedited schedule. In its papers, the government argued that "(i)n the 27 days since Blakely was decided, the federal system has fallen into a state of deep uncertainty and disarray about the constitutional validity of the federal sentencing guidelines system and what sentencing procedures should govern if Blakely invalidates that system in whole or in part." As the government noted, there are approximately 1,200 federal sentencing hearings each week – which, depending upon the Court’s ultimate decision, could mean tens of thousands of illegal sentences being imposed before the Court even hears argument in this matter. In response, the Supreme Court agreed to expedited review, taking the highly unusual step of bypassing the appellate courts. 

As Blakely demonstrates, the Court is likely to reap what it has sown this past term, whether that is in terms of several new cases concerning the scope of the establishment clause, cases concerning the rights of detainees, or cases involving the fate of the federal sentencing guidelines. Et cetera, et cetera, et cetera.

1. In the process, the Hamdi decision resulted in one of the odder combination of the term, with Justice Scalia authoring and Justice Stevens joining a sharp dissent that would have gone even further in protecting the rights of the detainees.

Jeff Bleich is a litigation partner at Munger, Tolles & Olson in San Francisco. He clerked at the U.S. Supreme Court for Chief Justice Rehnquist in the 1990 term, and has taught courses on federal constitutional law and habeas corpus at the University of California at Berkeley. Anne Voigts is a litigation associate at Munger, Tolles & Olson. She clerked at the U.S. Supreme Court for Justice Stevens in the 2000 term, and she taught a course in criminal procedure at the University of California at Berkeley this past spring.

© 2004 Jeff Bleich and Anne Voigts

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