U.S. Supreme Court – Page 29 – Marquette University Law School Faculty Blog

Habeas Corpus and the Right to Effective Assistance of Counsel

Post author:Michael M. O'Hear
Post published:January 4, 2013
Post category:Criminal Law & Process Legal Scholarship Public U.S. Supreme Court

My new article on habeas corpus and the right to effective assistance of counsel is now out: Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence, 25 Fed. Sent. Rep. 110 (2012). Here is the abstract:

This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.

Remembering Professor Bork

Post author:David R. Papke
Post published:December 20, 2012
Post category:Constitutional Interpretation Judges & Judicial Process Public U.S. Supreme Court

Published reports of the death of Robert Bork on December 19 not surprisingly dwelled on the most controversial events in his long life in the law. As Solicitor General under President Nixon, Bork in 1975 carried out orders to fire the Watergate special prosecutor. In 1987, Bork was nominated for the Supreme Court by President Reagan but then rejected by the Senate. During the 1990s and 2000s, Bork, while employed by conservative think tanks, vigorously argued that elitist liberals were trying to take over the judiciary.

For my own part, I recall Robert Bork from my first year of law school and from the time before he became a prominent national figure. It seems hard to believe, but I actually had Professor Bork for Constitutional Law. I also had Professor Bork for Legal Research and Writing because the Yale Law School in those distant days folded each student’s instruction in legal research and writing into an arbitrarily selected substantive first-year course.

I have no evidence that Professor Bork ever read the assorted memoranda and briefs I wrote “under his tutelage,” but I certainly recall his approach to Constitutional Law.

This Day in Legal History—Alabama Statehood and a New Era of Slavery Compromises

Post author:Scott C. Idleman
Post published:December 14, 2012
Post category:Congress & Congressional Power Constitutional Law Legal History Public Race & Law U.S. Supreme Court

On December 14, 1819, Alabama was admitted to the Union as the twenty-second state. The admission itself was not especially remarkable. Various parts of present-day Alabama had been settled by the French (and later the British) since the early 1700s, and explored by the Spanish as early as the 1540s. The territory to the west, moreover, had already been admitted as the states of Mississippi (1817) and Louisiana (1814). Not least important, Alabama’s soil and climate were amenable to cotton production, which was accelerating due to technological innovation and increased demand, such that the years preceding Alabama’s statehood had seen substantial growth in the region’s population.

What made Alabama’s admission significant, politically and constitutionally, was the situation it then posed for Congress regarding the admission of subsequent states, particularly west of the Mississippi River. Specifically, the nation was now evenly divided between free and slave states, having eleven of each. Given a federal Senate based on equal voting for every state regardless of population, this resulting parity of free and slave states made the admission of any additional state an opportunity either to expand or to restrict slavery. The South especially perceived the need to maintain parity as its influence in the House of Representatives declined relative to the North, which was experiencing (and would continue to experience) more immigration as well as greater industrial and economic growth.

This dynamic, in turn, set the stage for a new era of anti- and pro-slavery compromises and eventually—as these compromises less and less alleviated sectional tensions—a rather bloody civil war.