Reed v. Goertz, California v. Texas, and WWH v. Jackson
April 19, 2023 | Tags: REASON
Today the Supreme Court decided Reed v. Goertz. Reed was convicted of murder. Reed asked the prosecutor to conduct DNA testing of certain evidence. The prosecutor granted testing of some, but not all evidence. In state court post-conviction proceedings, Reed requested DNA testing of the remaining evidence. The state trial court denied Reed's motion. The Texas Court of Criminal Appeals affirmed that ruling, and later denied rehearing. Reed petitioned the Supreme Court for certiorari, which was denied. Then Reed repackaged his cert petition as a Section 1983 motion in federal district court. The District Court found that the claim was barred by the two-year statute of limitations. Specifically, the trial court started the clock from when the state trial court denied relief, not when the Court of Criminal Appeals denied rehearing. A panel of the Fifth Circuit affirmed. Reed then petitioned for certiorari from the Supreme Court.
A six-member majority reversed the Fifth Circuit. Justice Kavanaugh wrote the majority opinion. Justice Thomas wrote a solo dissent. Justice Alito wrote another dissent, which was joined by Justice Gorsuch.
The bulk of the Kavanaugh majority opinion, and the Alito dissent, disagreed about when to start the statute of limitation. Here, I want to focus on Justice Thomas's dissent, which focuses on subject matter jurisdiction.
The posture of this case is very unusual. How could Reed "appeal" the Court of Criminal Appeal's decision to a federal district court? Generally, the only route of appeal from a state court of last resort is to the United States Supreme Court through certiorari. And here, the Supreme Court denied cert. Federal district courts do not have "appellate" jurisdiction. They only have "original" jurisdiction. Why did the federal district even have subject matter jurisdiction here?
Justice Kavanaugh's analysis on jurisdiction spans only a page. Indeed, the entire decision is six-pages long.
First, what exactly is the injury in fact?
First, Texas argues that Reed lacks standing. We disagree. Reed sufficiently alleged an injury in fact: denial of access to the requested evidence. The state prosecutor, who is the named defendant, denied access to the evidence and thereby caused Reed's injury. And if a federal court concludes that Texas's post-conviction DNA testing procedures violate due process, that court order would eliminate the state prosecutor's justification for denying DNA testing.
There is some sleight of hand here by Justice Kavanaugh. What exactly is the claimed injury? Is the injury the prosecutor's denial of DNA testing? Or is the injury the Court of Criminal Appeal's denial of rehearing. If the injury is the former, then the clock started ticking even before the trial court ruled. But can the injury even be the latter? In other words, can the actions of a state court judge inflict an Article III injury, that can be redressed in federal court? Any order by the Supreme Court would, in effect, run against the prosecutor indirectly due to a change of law. But we usually don't think of the Supreme Court vacating a lower court opinion as a means to redress an Article III injury. Rather, what redresses the injury is an order that runs directly against an executive-branch official. This is a very unusual conception of redressability.
How does Justice Kavanaugh get around this theory? More sleight of hand:
It is "substantially likely" that the state prosecutor would abide by such a court order. Utah v. Evans, 536 U. S. 452, 464 (2002) (internal quotation marks omitted). In other words, in "terms of our 'standing' precedent, the courts would have ordered a change in a legal status," and "the practical consequence of that change would amount to a significant increase in the likelihood" that the state prosecutor would grant access to the requested evidence and that Reed therefore "would obtain relief that directly redresses the injury suffered." Ibid.
Justice Thomas explains why this approach cannot work:
The majority also misses the mark when it asserts that it is "substantially likely that the [district attorney] would abide by [Reed's requested] court order." Ante, at 3 (internal quotation marks omitted). Again, the only "court order"Reed seeks is a declaration disapproving the legal underpinnings of the CCA's judgment. Such an "order" would have no bearing on the district attorney's future conduct; in a literal sense, there would be nothing for him to "abide by."
Moreover, Whole Woman's Health v. Jackson suggests that this theory of redressability does not work. The upshot of that rocket docket case is that you can only sue executive-branch officials who enforce laws, and inflict injuries. You cannot sue state court judges, and their clerks who simply apply the law. Here, the district attorney is the nominal defendant, but the alleged injury really lies against the state court.
The Texas Solicitor General expressly invoked Jackson in his brief.
In other words, Reed does not dispute that courts, rather than district attorneys, adjudicate the merits of Chapter 64 claims and order or withhold DNA testing accordingly. "[N]o case or controversy" exists, however, "between a judge who adjudicates claims under a statute and a litigant who attacks the constitutionality of the statute." Whole Women's Health v. Jackson, 142 S. Ct. 522, 532 (2021) (citation omitted). Reed cannot avoid that problem by suing a different state official who does not enforce Chapter 64.
Justice Thomas explains that the injury, if one exists, was not by the district attorney, but by the court itself.
Fundamentally, Reed's complaint—like his certiorari petition before it—contests how "the Texas courts" "interpreted, construed[,] and applied" Chapter 64″to deny his motion for DNA testing," App. 14, ¶3, which is why the only relief he requests is an abstract "declaration that the CCA's interpretation and application of [Chapter] 64 . . . is unconstitutional." Id., at 49. The idea that his claim "does not challenge the adverse state-court decisions," ante, at 4 (internal quotation marks omitted), cannot survive even a cursory examination of his complaint. See supra, at 9–10. Nor would the other possibility make any sense. Reed cannot be seeking relief from the district attorney's enforcement of Chapter 64, because the district attorney has not enforced that law against Reed at all.
Now Justice Kavanaugh did not cite Jackson. Nor did Justice Thomas. Perhaps that wound is too fresh. The failure to engage with Jackson suggests that precedent will not have much vitality.
But there is another, even more relevant precedent, also from the Fifth Circuit: California v. Texas. Yes, who can forget the ill-fated Obamacare case. The Supreme Court made emphatically clear that a statute, standing by itself, cannot inflict an Article III injury. Rather, the enforcement of the statute creates the injury. And, as we all learned, a penalty-less mandate is not enforced. Or so we were told. Yet, Justice Kavanaugh walks right into California v. Texas!
Under the so-called Rooker-Feldman doctrine, federal district courts do not have appellate jurisdiction over state-court judgments. But Kavanaugh writes that Rooker-Feldman does not apply here. Why? Because Reed is targeting the statute! Huh?
That doctrine prohibits federal courts from adjudicating cases brought by state-court losing parties challenging state-court judgments. But as this Court explained in Skinner v. Switzer, even though a "state-courtdecision is not reviewable by lower federal courts," a "statute or rule governing the decision may be challenged in a federal action." 562 U. S. 521, 532 (2011). Here, as in Skinner, Reed does "not challenge the adverse" state-court decisions themselves, but rather "targets as unconstitutional the Texas statute they authoritatively construed." Ibid.
No, this argument does not work. Justice Thomas, who joined the California majority, invokes California in his dissent:
The majority accepts Reed's representation that he "does 'not challenge the adverse' state-court decisions themselves," but only "'targets as unconstitutional the Texas statute [Chapter 64] they authoritatively construed.'" Ante, at 4 (quoting Skinner v. Switzer, 562 U. S. 521, 532 (2011)). But this workaround to Rooker-Feldman raises a glaring Article III problem: As this Court has repeatedly explained, a federal court may not entertain a free-floating challenge to a statute unmoored from a concrete case or controversy. See, e.g., California v. Texas, 593 U. S. ___, ___–___ (2021) (slip op., at 7–9);
Thomas explains that Reed cannot seek an advisory opinion:
Unless Reed merely seeks an advisory opinion, his due process challenge to Chapter 64 must seek relief from some concrete enforcement or application of that law that affects him.More specifically, Reed must be challenging either (1) some conduct of the district attorney constituting enforcement of Chapter 64 against him or (2) the CCA's application ofChapter 64 as a rule of decision in his case.
The mere enactment of a statute does not provide a basis for standing:
By itself, a State's legislative enactment of an unconstitutional law does not give rise to a justiciable case or controversy. See California, 593 U. S., at ___–___ (slip op., at 7–9);
I know it is fashionable to attack Justice Thomas as a partisan hack. But on standing, he is completely consistent. He found no jurisdiction in the Obamacare case. And no jurisdiction in the murder case. The other eight justices cannot make such a claim to consistency. Everyone else switched sides.
When I first saw Kavanaugh's 6-page decision, I was shocked. It is rare that a Supreme Court decision is so short–especially where there are two lengthy dissents. Writing such a short opinion conveys the issues are open-and-shut. But Kavanaugh completely fails to engage with Justice Thomas's dissent. More misdirection. Nothing to see here.
I think this is a case where some conservatives thought it was unfair to rule against a criminal defendant who pursued his appeal through the state court system, and was then kicked out of federal court on statute of limitation grounds. Plus, this is a case where the conservatives can rule in favor of a criminal defendant convicted of a vicious murder and rape, who has no plausible defense of actual innocence. The virtues signal themselves!
Ultimately, none of these arguments will matter. Reed will not escape the execution chamber, as Justice Thomas explains:
If there is a mitigating factor to today's decision, it is that the §1983 action that the Court misguidedly allows to proceed is no barrier to the prompt execution of Reed's lawful sentence. See Hill v. McDonough, 547 U. S. 573, 583–584 (2006). Indeed, Reed conceded at oral argument "that you do not get a stay of execution just because you brought [aChapter] 64 proceeding or just because you're in [§]1983proceedings . . . challenging the adequacy of the procedures available to you from the state." Tr. of Oral Arg. 68. Texas is free to take him at his word. But, because the majority undermines vital principles of federal jurisdiction and destabilizes the orderly working of our judicial system, I respectfully dissent.
Finally, I'm disappointed Justice Barrett joined Justice Kavanaugh's majority opinion. During oral arguments in California, Justice Barrett repeatedly asked about redressability, and made clear that standing cannot be grounded on a challenge to a statute, standing by itself. I've seen Barrett as something of a jurisdiction wonk on the Court. The Kavanaugh majority should not have been a join.
Update: I see now that celebrities like Beyonce, Rihanna, and Kim Kardashian came out in support of Reed. I am now more confident in my virtue signaling analysis. I'm sure these important people will suddenly change their view of the Supreme Court, and the author of the majority opinion.
The post <i>Reed v. Goertz</i>, <i>California v. Texas</i>, and <i>WWH v. Jackson</i> appeared first on Reason.com.