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Thursday, September 24, 2009

Schramm's Docket

Throughout the Supreme Court’s new 2010 term, PJP faculty member Harold Schramm will offer commentary and analysis of the Court’s caseload. Journalists can follow Schramm’s analysis to build stories of their own. Today’s post speaks to the predominantly Catholic membership of the Roberts Court – an unprecedented development – and to the erosion of the once-sacred “right to counsel.”

On Monday, October 5, the Supreme Court will begin its new term officially after some “false starts”. There has been a special and preliminary hearing on the commercial speech case (Citizens United v. FEC, in which the Court considered whether the McCain-Feingold restrictions on corporate campaign spending violate the First Amendment); and Justice Sotomayor has already been sworn in twice so no further official recognition of her appointment need be made. Despite all of this anticipatory flutter, the Court is ready to take on new cases and has scheduled three for the first Monday morning in October.

A Catholic Court?

There should be no dearth of Justices at the traditional Red Mass scheduled each year at the Washington’s Cathedral of St. Matthew the Apostle on the Sunday before the beginning of the term. There are now six (count ‘em six) Justices on the bench with strong Roman Catholic backgrounds. Justices Kennedy, Scalia, Thomas, Roberts, Alito and Sotomayor have traditional ties to Catholicism. In addition, three of the Justices have Jesuit connections: one of Justice Scalia’s nine children (how appropriate for a Justice to sire nine children, enough for a court of his progeny!), his son Paul David Scalia, attended Holy Cross College in Worcester, MA and is now a priest in Arlington, Virginia (you can read his attack on his alma mater for accepting money from pro-abortion rights groups like NARAL and Planned Parenthood here ); Clarence Thomas is an alumnus of Holy Cross as well; and Chief Justice Roberts is married to yet another Holy Cross alum. Whereas thirty years ago all but one justice was Protestant, today the balance of religious affiliation has been completely reversed: now there is just one Protestant justice, John Paul Stevens, and this in a country where sixty percent of the population claims a Protestant affiliation.

Chief Justice John Roberts departs Washington's Cathedral of St. Matthew after the 2008 "Red Mass."

The effect of this religious uniformity (the remaining two justices – Stephen Breyer and Ruth Ginsburg are Jewish) is yet to be measured or defined, but it stands out to some of us as a peculiar and remarkable coincidence. One can only speculate as to its subtle influence in decisions, but the official (and absolute) position of the Church on issues like the death penalty and abortion makes for interesting theorizing.

Does a defendant’s silence answer in the affirmative, in the negative, or not at all?

The second case to be heard on Monday the 5th is interesting because one thought that the issue of right to counsel had been settled. After all, Gideon v. Wainwright, which established this right in the Warren Court era, is one of the landmark cases in Supreme Court history and in subsequent cases the Court has expanded and clarified that right. But recently, the Roberts Court, perhaps in a return to conservative thinking, has agreed to take a new look at the parameters of the call for counsel and the restrictions on interrogation after that call has been sounded.

Last year, in Montejo v. Louisiana, the Court considered whether an indigent defendant, having had counsel appointed to his or her case, must take additional affirmative steps to “accept” the appointment in order to secure the protections of the Sixth Amendment that preclude police-initiated interrogation without counsel. By a vote of 5-4, it declared that such steps were indeed necessary and in the absence of them, statements made to police were admissible.

In Maryland v. Shatzer. the Court now will hear arguments about the finality of the “right to counsel” assertion, and will consider whether the constitutional claim once made, remains sacrosanct even after the passage of time. The case involves a defendant, Shatzer, who, in the midst of interrogation over a charge of sexually abusing a child, invoked his right to counsel and was later convicted of the crime and sentenced to prison. While in prison a second charge was re-opened (that the defendant had sexually abused his own three-year-old child) and this time, as he was being interrogated, Shatzer waived his right to counsel and admitted to the crime. However, once that case came to trial, he moved to suppress the confessions he made earlier arguing that his earlier invocation of his constitutional right to counsel was still applicable.

Justice Sotomayor will be given a chance to test her 2nd Circuit reliance on precedent since the precise issue seems to have been settled in 1981 in Edwards v. Arizona (with the right to counsel, once declared, to remain effective no matter the passage of time). But precedence has a power at the circuit court that it does not carry at the Supreme Court since it is the Supreme Court that actually sets the precedent.

Look for Edwards v. Arizona to be overturned. With a five member conservative majority, Chief Justice Roberts seems intent on influencing the direction of criminal procedure and removing the handcuffs from police officers in the interrogation process. It may be a reflection of the Chief’s “no more Mr. Nice Guy” persona as noted by a recent Newsweek article, and a change in the Court’s view of precedent in practical criminal law.

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