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Thoughts on Recent Supreme Court Decision

Although we usually write about topics pertaining to the representation of whistleblowers, from time to time things come up where it’s hard for us as lawyers who care about process to remain silent.  Yesterday, the Supreme Court issued an opinion that got little attention because it came down the same day as the big sports gambling decision.  Given how much attention we as a nation pay to sports, and how little we pay to death row inmates, the story got little play.

The case we’re talking about is McCoy v. Louisiana (16-8255) (05/14/2018).  In an opinion authored by #NotoriousRBG, the Court held, 6-3, that a lawyer in a capital case cannot admit his client’s guilt before the jury against his client’s wishes, even if based on a reasonable opinion that it might be the client’s best chance of avoiding a death sentence.  (The tactic did not work; the jury voted for the death penalty anyway.)

If you’re tempted to say, well duh, you’re not alone.  Of course a lawyer can’t take a position in a court case that is expressly against his client’s stated defense (in this case the client’s preferred defense was ‘I didn’t do it’ and his lawyer stood up in court and said ‘he did it’).  But what’s with the three dissenters–why did they take a different view of things?

Before we tell you who those three dissenters were (although you could probably guess), let us give you a similar question out of the civil lawsuits which we deal with all the time, like a False Claims Act suit.  Let’s suppose we’re litigating a non-intervened FCA case and in the course of the litigation the defendant signals that it wants to settle the matter.  The defense offers $1 million to settle.  The whistleblower client is adamant that this is insufficient, about a tenth of what a finder of fact would award (in his humble opinion).  The client therefore says no way, but the whistleblower lawyer accepts the offer on his behalf anyway!!  The lawyer then runs to the government and says hey look at this great settlement we’ve gotten you.  It seems pretty clear that the lawyer would get fired on the spot, and that the acceptance of the offer would be called into question and ruled unenforceable.

So why, in a comparable criminal case, where the issue is not money but a man’s life, would three justices find the defense lawyer’s move acceptable?  Well, because they’re on the far end of the ideological spectrum, and the era of ringing unanimous 9-0 opinions is pretty much gone for the foreseeable future.  Yes, Justices Alito and Thomas, joined by Justice Gorsuch (sitting in for, ahem, Merrick Garland) said that they, like the Louisiana courts, saw no reason to require a new trial (and that executing a man in these circumstances would be o.k.).  These three justices will be, regrettably, oh-so-predictable and oh-so-far-out for as long as they’re on the Court.  (In Justice Thomas’ first vote on the court, many years ago, he joined Justice Scalia in dissent, finding that the beating of a prisoner chained to a wall was not cruel and unusual punishment.  He’s remained on Planet Scalia pretty much ever since, where Alito and Gorsuch have now joined him.)

So much rests in the balance with the Supreme Court.  The breakdown of our politics, though, has had a real impact on the Court–and on the law itself.  When you replace Thurgood Marshall with Clarence Thomas, and when you prevent Merrick Garland from taking his seat and give it to Neil Gorsuch instead, the law evolves differently.

Fortunately for Mr. McCoy, Justices Kennedy and Roberts brought some reason to the case and joined RBG in the majority.  But it will not always be so.  The Travel Ban case is pending and could well be 5-4 in favor of the Trump Administration, where it might have been 5-4 the other way with Garland on the Court.  In cases like that, it’s hard to have confidence in the institution of the Supreme Court when an issue as important as the Travel Ban is determined by a single vote, and that vote in turn was determined by whether or not Mitch McConnell was able to stall Merrick Garland’s appointment for over a year, denying a well-respected jurist even a hearing.

In times like these, it is good to remember (or to hope) that “the arc of the moral universe is long.”  But for the litigants themselves, like Robert McCoy or an immigrant whose case and career will turn on the Travel Ban case, they don’t have forever to wait.

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