Is this the shape of things to come?: "BREYER, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, SOUTER, and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined."
That's the language at the end of a Supreme Court opinion issued last week in which six moderate to liberal justices out-voted three conservatives in a habeas corpus case. In so doing they seem to have changed the law in this area -- at least slightly and maybe more so. They definitely changed the tone of the constitutional argument on this issue, putting fairness above finality in the habeas debate.
Federal reviews of state trials come about when convicted persons file habeas corpus writs. Conservative judges and politicians believe habeas writs overload the judiciary, often provide a loophole through which the guilty go free or delay justice forever. (The House of Representatives voted this month to restrict habeas petitions.) Two years ago the Supreme Court narrowed the loophole in a 5-4 decision that some observers interpreted as putting the burden of proof that a trial error occurred on the convicted person. If he couldn't show the error was harmful, the state court's decision stood.
The Supreme Court "clarified" that ruling last week. Justice Stephen Breyer, the newest member of the court, said that even when a convicted person couldn't demonstrate an error was harmful, if a federal judge had his own "grave doubts," the conviction had to be thrown out.
An interesting thing about the lineup in this 6-3 decision is that both Clinton appointees -- Justices Breyer and Ruth Bader Ginsburg -- took the relatively "liberal" view, as did Justices Sandra Day O'Connor, Anthony Kennedy, David Souter and John Paul Stevens. In 1993, last week's dissenters -- Chief Justice William Rehnquist and Justices Clarence Thomas and Antonin Scalia -- prevailed by winning Justices Kennedy and Stevens to their side.
Did those two change their votes this year on the basis of different specifics in the cases or because of the different arguments and the different dynamic brought to the court by the newcomers? If it was the latter, will the pattern continue?