Digging In Your Heels

Yesterday, Lyle Denniston at SCOTUSblog criticized a lawyer's performance in Johnson v. Williams, a case that raised the issue of when a federal court on habeas review must defer to a state court's ruling on a constitutional issue on the merits when the state court addresses the state questions, but remains silent on the federal constitutional issues.

The lawyer representing California urged the Court to adopt a categorical rule - that federal courts should presume a state court has addressed the federal issues, unless the state court explicitly states it will pass on the federal issues.  Justice Kennedy, however, noted that California could prevail on narrower grounds.  Since the state court relied on an earlier state case that had specifically addressed the federal constitutional claim petitioner was asserting, Justice Kennedy suggested that both the state and federal issues were linked.  This, Justice Kennedy reasoned, obviated the need to adopt the categorical rule urged by California.  Justice Ginsburg appeared to agree.  

The California lawyer agreed with Justice Kennedy, but quickly returned to pressing for the broader, categorical rule where she faced strong resistance from Justices Alito, Scalia and Kennedy.  Denniston criticized the lawyer's oral argument strategy.  His criticism is neatly captured by the headline "Pushing the envelope, needlessly."  

Meanwhile, Tom Goldstein found no harm in the California lawyer's decision to argue for the broader rule, even though several justices showed much skepticism toward its workability.  Since it was obvious that California would at least prevail on the narrower grounds, there was no harm for California to urge for a broader rule that would affect a number of other pending cases.  As Goldstein states, "the state had the chance of assembling a majority for its broader rule [and] it has a significant interest in many other cases in having a categorical rule that better insulates rulings of the state courts from federal habeas challenge." 

I would ordinarily agree with Denniston's criticisms.  In much less complex cases, far too many lawyers let their vanity take over and insist on pressing the argument they wrote rather than taking the lifeline offered by the Court.  But, in the context of this case, Goldstein's analysis is apt.  In contrast to a private party, the State of California, represented by the Attorney General, must think about considerations other than simply winning the case.  That is, in representing the public interest, the Attorney General must not only craft the most persuasive argument to win, but also the most convincing argument that will shape the law favorably for the other cases that remain in the pipeline.  Thus, the appellate practitioner representing the public interest must contemplate the broader impact of his/her argument strategy, and the lawyer here displayed a deep awareness of her role as a public interest advocate. 

Still, private practitioners should take note: vigorously press the main argument, but if the Court hints at an alternative, winning argument, just run with it.