In a variation on the balls and strikes problem, what seems simple, straightforward, and perhaps self-evidently clear in the Constitution only seems that way to people who aren't lawyers. Lawyers know better. Lawyers know that the simplest constitutional language, whatever it may mean, pretty surely isn't what it says.
Take the Double Jeopardy Clause of the Fifth Amendment.
[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.
That seems clear enough. You can't be tried twice for the same crime. Except, of course, that you can. Not always, but often enough.
I wrote about this at the end of March, the day before the Supreme Court held oral argument in the case of Renico v. Lett. The issue in Reginald Lett's case, at least on the surface, is whether there was "manifest necessity" for a Michigan trial court to declare that the jury in his murder trial was hopelessly deadlocked after four hours of deliberations. (For purposes of today's discussion, the details don't matter.)
If it was manifestly (which means "obviously") necessary (which means "necessary") for the judge to conclude that the jury was deadlocked, that there was simply no chance that the jury could unanimously decide whether Lett was guilty beyond a reasonable doubt, then he might be guilty beyond a reasonable doubt and could be tried a second time for the same murder. (Just accept this; it's the law. Don't try to make sense out of it.) The Michigan Supreme Court said that it was close enough for government work. The 6th Circuit Court of Appeals said it wasn't.
This morning, the U.S. Supreme Court gave the final answer.*
Lett lost, which really wasn't much of a surprise. Chief Justice Roberts wrote the opinion which was joined by the usual suspects (Scalia, Thomas, and Alito), the man who holds the constitution in his hands (Kennedy), and one of the moderates (Ginsburg).**
Like I say, no surprise. No big deal. The law of double jeopardy remains exactly as it was yesterday.
But this isn't a post about double jeopardy. This is a post about fundamental fairness and the rule of law. This is a post about how we (that's the societal "we') truly don't care.
So we need another piece of background. Lett is a case under AEDPA, the Anti-Terrorism and Effective Death Penalty Act of 1996. The purpose of AEDPA (at least, it's relevant purpose) was to put a stop to federal courts overturning death sentences just because the courts, the prosecutors, the cops, or the defendant's own lawyers violated the Constitution. See, habeas corpus is supposed to ensure that folks are not improperly tried or imprison or executed. And the Constitution pretty clearly says that neither Congress nor the courts nor the president can just eliminate habeas corpus. So they cooked up AEDPA to try and make it as close to meaningless as they could. (They continue to work at that effort, since AEDPA hasn't fully stopped federal courts from finding that states violate the Constitution.
Here's how it works, as explained by our chief justice, in Lett.
It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of . . . clearly established Federal law.” §2254(d)(1).
We have explained that “an unreasonable application offederal law is different from an incorrect application of federal law.” Williams v. Taylor, 529 U. S. 362, 410 (2000). Indeed, “a federal habeas court may not issue thewrit simply because that court concludes in its independent judgment that the relevant state-court decision ap-plied clearly established federal law erroneously or incorrectly.” Id., at 411.
See how neat that is. The federal courts aren't interested in whether the trial court did the right thing. They aren't even interested in whether he abused his discretion. (An abuse of discretion, by the way, generally means that even if he got the got the law grossly wrong, his decision wasn't entirely irrational.) Rather, they care about whether the state court that said the state judge didn't abuse his discretion was itself grossly wrong.
You could park an army in the space between that degree of wrongness and getting it right.
Still aren't sure? Here's the last paragraph of Roberts' opinion.
AEDPA prevents defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts. Whether or not the Michigan Supreme Court’s opinion reinstating Lett’s conviction in this case was correct, it was clearly not unreasonable. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
There you have it. It doesn't matter if the state properly applied the Constitution. It doesn't matter if they get it right. You don't after all, have a constitutional right to your constitutional rights. You just have a right to not have them violated so grossly that it is an additional gross violation to ignore it.
It was Congress and Clinton that slammed that door with AEDPA. But the Court was heading in that direction on its own. Because, really, you can't let just anyone demand justice. Where would we be then?
I said this was a post about fundamental fairness and the rule of law. For the past 20 years or so, they've been systematically shutting the doors of the courts. Sometimes Congress leads the way (AEDPA and the Military Commissions Act, for instance). Sometimes the Court leads the charge (Ledbetter v. Goodyear Tire & Rubber Co.). Sometimes the Court shuts the door while pretending to leave it open (Safford Unified School District No. 1 v. Redding). Sometimes one branch of the system ends up checking the actions of another branch. But not always.
And sometimes, not often, but sometimes, they make it explicit.
And so, today, along with explaining that you don't have a right to your constitutional rights, the Court demonstrated just how serious it was about shutting the courthouse doors. Scotusblog has the story.
Beginning tomorrow, the Supreme Court announced today, the public will no longer be able to enter the Court’s building by the main entrance at the top of the steps on the front.
*Final because it's last, not because it's more likely to be right about the law or facts than any other court. The point was made by Justice Jackson, concurring in Brown v. Allen.
We are not final because we are infallible, but we are infallible only because we are final.
**Despite what the media, the Republicans, and a few Democrats would have you believe, there are no liberals on the Court, and have not been any for a very long time.