By Tom Gaylord, originally published on the IIT Chicago-Kent Law Library Blog.

As we enter June, we also enter the final month, for all intents and purposes, of October Term 2012 (OT 2012) of the Supreme Court (I say “for all intents and purposes” because although the Court’s Term will not actually end until the opening of OT 2013 on October 7, 2013, the Court traditionally issues it final decisions in argued cases during the last week of June). Thus far, the Court has issued opinions in 45 argued cases, as well as 4 per curiam opinions in cases decided without argument.

Continue reading →

Case:

Trevino v. Thaler

The Supreme Court today issued opinions in two cases involving procedures for habeas corpus, specifically in the context of individuals who are challenging their state-court convictions or capital sentences. Habeas allows these individuals to allege that their convictions are invalid due to constitutional defects in the trials. Winning such a claim is very, very difficult. The legal doctrine is very restrictive, thanks to both Congress, which passed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) in 1996, and to years of highly restrictive Supreme Court precedent. Today, however, both cases inched open doors for habeas petitioners.

Continue reading →

Case:

Boyer v. Louisiana

At oral argument in Hollingsworth v. Perry, the Prop 8 case, Justice Kennedy openly wondered whether the case had been “properly granted” and hinted that an appropriate resolution might be to dismiss it as improvidently granted (or DIG it, in the shorthand of the Court. A DIG would mean that the Court would simply decline to decide the case as if it had never granted it in the first place, and the Ninth Circuit judgment would stand. As Tom Goldstein observed, such an outcome is seen as unlikely because, presumably, the four conservative justices would oppose it. And if five justices could DIG a case over the objections of four, then the rule of four — it takes four votes to grant certiorari — would be in jeopardy. Today, however, that is precisely what happened. In Boyer v. Louisiana, the Court DIG’ed a case involving a criminal defendant’s challenge to his conviction over the dissents of the four liberal justices.

There are of course differences between Boyer and Hollingsworth. For one thing, in a concurrence, three members of the Boyer majority (Justice Alito, joined by Justices Thomas and Scalia) argued that the facts of the case, as they emerged during briefing and argument, were different from the factual assumptions that led to the grant. Nothing similar is likely to happen in Hollingsworth. On the other hand, the long time from argument (October 5, 2012) to decision (April 29, 2013) suggests that there was some jockeying and negotiation going on among the justices — generally a DIG occurs fairly quickly after oral argument, even where there are separate opinions. So the fact that the Court has not yet DIG’ed Hollingsworth should not lead to the conclusion that it won’t.