 Welcome back to this third and final part of the Federal Judicial Center's review of the 1999-2000 Supreme Court term. This part of our review will last about 38 minutes. Here we'll discuss the relationship between the federal government and the states, as defined by cases arising under the Commerce Clause and the 10th and 11th Amendments, as well as some standing and preemption cases. The Court also considered whether provisions of the Prison Litigation Reform Act intruded unconstitutionally on the judicial function and a case regarding the limits of agency authority under legislative delegation. We'll finish with a special focus segment on this term's four habeas corpus cases. In 1995, in USV Lopez, the Court set a gun control statue as beyond Congress's authority under the Commerce Clause. In the next year, in Seminole Tribe versus Florida, the Court strengthened the state's 11th Amendment immunity from lawsuits. At the time, many wondered whether these cases marked the start of a major departure in the Court's federalism jurisprudence. By now, it is clear that, at the least, those cases were more than simply blips on the landscape. Several decisions this term continued the federalism evolution, or revolution, as the case may be, and joining me to discuss them are Susanna Sherry of the University of Minnesota Law School and Erwin Chemerinsky of the University of Southern California Law School. Susanna, you know better than I that the Court in the last decade or so has been limiting, on the one hand, congressional authority to abrogate the state's sovereign immunity under the 11th Amendment and limiting congressional authority also to use its constitutional grant of authority to regulate what the Constitution calls commerce among the several states. Let's start with the 11th Amendment cases. We have two this term. Well, one actually is not an 11th Amendment case because the Court didn't reach the issue of whether or not Congress could abrogate the state's authority in the area of key Tom suits. Yes, the Court did, as you say, duck the 11th Amendment question in that case. A key Tom suit allows an individual relator to sue and alleged defrauder on behalf of the federal government, and the case raised the question of whether Congress can allow an individual relator to sue a state for fraud. It does raise serious 11th Amendment questions, as the Court noted, but ultimately the Court decided it on statutory grounds. The key Tom statute allows suits against persons, and the Court held that in this context states are not persons. Rivermont Natural Resources Agency. Now, the Court was asked in the Kimmel case to find the same thing that Congress had not abrogated the state's immunity under the Age Discrimination and Employment Act, but the Court found an abrogation and then found that abrogation unconstitutional. This was a suit by the Florida State Physics Professor and others protesting the salary scale for older employees. Tell us the nature of the analysis of the Court used here. Well, the Court used what is by now standard 11th Amendment analysis. Congress cannot abrogate state sovereign immunity and subject states to suits unless it's acting under Section 5 of the 14th Amendment, and Congress can't act under Section 5 of the 14th Amendment unless it is implementing or enforcing a constitutional right rather than creating new rights, and the Court held that the ADEA was creating new rights rather than implementing them because age discrimination is not unconstitutional unless it's irrational and Congress did not have any evidence of a pattern of state irrational discrimination on the basis of age. Now, this interpretation, this narrow interpretation of Section 5 is important because it suggests that Congress might have some trouble justifying the ADEA, the Americans with Disabilities Act, and the Court has a case on its docket next term involving that statute that's University of Alabama versus Garrett. I think it's an open question as to what congressional fact-finding is necessary to justify a law under Section 5 of the 14th Amendment. In Kimmel, the Supreme Court found there was insufficient congressional fact-finding of state age discrimination to justify the Age Discrimination Employment Act, but there is a much more elaborate legislative record with regard to the Americans with Disabilities Act. Do you think this will make a difference? Well, the Court certainly thinks that legislative findings are very important, although in recent years they haven't upheld any federal statutes based on sufficient legislative findings and at least the accommodation provisions of the ADEA may be different because it might not be possible for Congress to make the right findings. You'll recall that in City of Bernie, the Court struck down RFRA because accommodating religious objectors is not constitutionally required, so a finding that states weren't doing it was not enough to justify the statute and I think you can make the same argument here since accommodating disabilities is not constitutionally required. The fact that states are not accommodating disabilities might not be enough to give Congress this power. And I think it should be pointed out that it's not just the Americans with Disabilities Act can be challenged on this basis. There's a vast array of federal statutes that are arguably adopted in Section 5 of the 14th Amendment, the Family Medical Leave Act, Title IX, the Rehabilitation Act, all might be challenged as exceeding the scope of Congress's power under the 14th Amendment. Yes, I think all of these statutes are at risk and indeed several lower courts have struck down various of these statutes. Well, watch how it develops. Thanks very much, Susanna. There are 10 to 3 cases now that implicate the Commerce Clause 10th Amendment axis and the one case that was not unanimous this term was USV Morrison which involved the Violence Against Women Act, the civil suit provision of the Violence Against Women Act. Tell us how the court resolved this case. The Supreme Court in a 5 to 4 decision declared unconstitutional civil damages provision of the Violence Against Women Act. The case involved a woman who was allegedly raped on a freshman at Virginia Tech University. She sued her assailants and the university. There were two arguments made as to why the civil damages provision is constitutional. One is it was a valid exercise of Congress's Commerce Clause Authority. Chief Justice Rehnquist wrote the opinion for the court here and went back to the case that you mentioned, the United States v. Lopez. In Lopez, the Supreme Court said, Congress can regulate under the Commerce Clause in three circumstances. First, Congress can regulate the channels of interstate commerce, the places where commerce occurs. And that's obviously not involved in this case. Second, Congress can regulate instrumentalities of interstate commerce and persons with things in interstate commerce. And Chief Justice Rehnquist said here, there's no proof that the woman was traveling interstate commerce. And third, the court said Congress can regulate if there's a substantial effect on interstate commerce. In this case, Congress had made elaborate findings that violence against women cost the American economy billions of dollars a year. But Chief Justice Rehnquist said it's insufficient to find a substantial effect on commerce. Chief Justice Rehnquist, if this was enough, such but for analysis, then Congress could regulate anything. The Supreme Court said, when Congress is regulating non-economic, non-commercial behavior, it can't find a substantial effect on interstate commerce based on the cumulative effect of many activities throughout the economy. I think this is going to lead to challenges to many different federal statutes as exceeding the scope of Congress's Commerce Clause Authority. Besides possibly the drug statutes, what statutes? Consider, for example, firearm statutes. There's a federal law that makes it a federal crime for a person under restraining order in domestic violence case to have a firearm. There's a federal law that makes it a federal crime to have a firearm where the serial number is crossed out. Another example, there's a federal law that makes it a crime to have a cloned cell phone. These are just a few of many laws adopted in the Commerce Clause that may now be subjected to challenge. No, I disagree. I think that the opinion is limited to federal encroachments on core traditional state criminal laws where the activity has no effect on interstate commerce beyond the effect from crime generally. Are there any cases coming up to test this? The Supreme Court has granted certain one case for next term in terms of the scope of the Commerce Power. It's a case that involves a federal law that regulates migratory birds on interstate wetlands. The case is Solid Waste Agency of Northern Cook County versus United States Army Corps of Engineers. And what the court says here might apply to other environmental laws such as the Endangered Species Act that also were adopted under the Commerce Clause Authority. You explained how the court, as in the eyes of some cabin, the Commerce Clause Authority of Congress. What about its authority under Section 5 of the 14th Amendment? That was the other argument that was made to the Supreme Court that the Civil Damages Provision of the Violence Consumer Act that's constitutional is in excess of Congress' authority under Section 5. And the court, again, by a 5 to 4 margin held, the Provision Unconstitutional is exceeding the scope of Congress' power. Chief Justice Rehnquist, writing for the court, said, Congress under Section 5 of the 14th Amendment only can regulate state and local governments. It can't regulate private conduct. In the civil rights cases in 1883, the Supreme Court had said Congress can only regulate state and local governments, but in the last 40 years, there were a number of Supreme Court cases, like United States v. Gast, that indicated that Congress could regulate private behavior under Section 5. But not anymore. This case makes it clear that when Congress regulates under Section 5, it can only regulate state and local governments. This, too, I think is going to lead to challenges to a vast array of federal laws. For instance, 42 United States Code, Section 1985, authorized a civil suit against private conspiracies that interfered with civil rights. The Freedom of Access to Clinics Entrances Act, which protects abortion clinics from private violence, that sent they were adopted under Section 5, they seem really vulnerable to challenge. Here, I agree that these statutes are vulnerable. Well, thanks very much, Erwin. Susanna, let's turn to two other Commerce Clause cases. These were both unanimous. The first one involved the federal arson statute, Jones v. the United States. Jones threw a Molotov cocktail into his cousin's house, and he said that this behavior isn't reached by the statute, and if it is, the statute's unconstitutional. Nine to nothing, the Supreme Court found for him. Why did they find for him? Well, again, they ducked the constitutional issue in this case. The question was whether the federal arson statute could reach arson of a private residence. And again, the court noted that there would be serious constitutional questions under the Commerce Clause if the arson statute were interpreted to reach that far. But ultimately, again, the court rested on statutory grounds. They held that the arson statute, which applies only to arson of buildings used in or affecting interstate commerce, does not go as far as residences. Now, there is still an open question that Justice Thomas and Scalia noted in their concurrence, which is that we know that the arson statute doesn't reach as far as a private residence. What we don't know is whether the arson statute does or constitutionally can reach every commercial building. I think it's notable here that the Supreme Court, for the first time, used the Commerce Clause as a principle of statutory interpretation. The court said if the Commerce Clause was used here to be serious constitutional problems, so it would interpret the law so as to avoid those constitutional issues. I think this is something that's going to come up in a lot of cases in the district courts in the future, where the argument would be to avoid an unconstitutional interpretation, would avoid a constitutional problem, the statute would be given a narrow interpretation. Read the statute narrowly, and let's look at another statute that was uprooted when it was this federal statute, the Drivers Privacy Protection Act, which again, this was a unanimous decision, a lawsuit against the Attorney General by the Attorney General of South Carolina, Condon, who claimed on the basis of the 10th Amendment and also the limits in the Commerce Authority that this statute was unconstitutional, but nine to nothing the court said no. The Supreme Court rejected the 10th Amendment argument Chief Justice Rehnquist wrote for the court, the Drivers Privacy Protection Act prevents State Department of Motor Vehicles from releasing private information like home addresses and social security numbers. Chief Justice Rehnquist said the earlier 10th Amendment cases over the past decade that it found laws unconstitutional, involved Congress issuing affirmative commands to state law governments. Here the court said this is a prohibition, it's a negative law, and that's different. Also the court emphasized that in this instance, Congress was not just regulating state and local governments, that the law applied to private entities that had DMV information. It also was a situation where Congress was adopting a whole system of laws safeguarding informational privacy and this was one of them. I think the case is notable, because it's the first time in the last decade that the Supreme Court has rejected a federalism challenge to a federal law. We certainly though have a different situation of a law which the court did strike down several years ago, the Brady Act, and directed local sheriffs to implement the federal statute. This is quite a different scene. That was an affirmative command, whereas this is a prohibition. Correct. Thanks very much, everyone. And thank you, Susanna. Our discussion will continue in a moment. This term, as in most, the court decided several cases involving the limits of federal court jurisdiction and federal preemption of state law. There was also a challenge to a provision of the 1996 Prison Litigation Reform Act that was constitutionally interfering with the operation of the judicial power and a decision involving deference to agency decisions. Jordan Stiker of the University of Texas School of Law joined Susanna Sherry to discuss eight of these cases. And Susanna will start with some jurisdiction cases. A case reminiscent of cases in earlier terms is this lawsuit by the environmental group Friends of the Earth against the South Carolina Corporation, Laidlaw for violating the Clean Water Act. They said Friends of the Earth doesn't have any standing, and besides, we stopped doing what they didn't like, so there's no case here. But the court did not agree. No, the court loosened the constraints of the standing and mutinous doctrines in this case. The plaintiffs had originally sought an injunction against Laidlaw's discharge of pollutants into the river, as well as civil penalties, which would be payable not to the plaintiffs, but to the federal government. The district court found that the pollutants did not cause any harm to the environment, and that was not standing. By the time the case came to judgment, however, Laidlaw had stopped polluting, and so there was no injunction necessary, but the district court nevertheless awarded half a million dollars in penalties, again payable to the federal government. The Court of Appeals, though, found that the case was moot since Laidlaw had stopped its activities, and the Supreme Court reversed. It held that the case was not moot and that if a defendant voluntarily ceases its conduct, the case is not moot unless the party asserting mootness can show that the conduct is not reasonably likely to recur, and that burden is on the party asserting mootness, in this case the defendant Laidlaw. So Laidlaw could not show that the case was moot, but what about showing that Friends of the Earth didn't have standing? Well, the court found that Friends of the Earth had standing in terms of the harm to the plaintiff. The court said that the plaintiffs were not to the environment, and that their allegations that they either couldn't use or were reluctant to use the river for recreational purposes were sufficiently specific to confer standing. The court distinguished the Lujan versus Defenders of Wildlife case saying that in this case the allegations were more specific and less speculative. Do you think this case clarifies the distinction between mootness and standing in any helpful way? The plaintiff seeking to start a lawsuit and obtain standing must show a likelihood of injury. On the other hand, if the suit is in the middle and the defendant ceases the conduct, the plaintiff doesn't have to show anything. The party asserting mootness has the burden of showing that it is unlikely to recur. So there actually might be a state of affairs that would be enough to keep the case alive, even if it wasn't enough to confer standing in the first instance? Yes, the court made that quite explicit. We might have discussed earlier under our First Amendment discussion, but didn't. But it's relevant here. This is the case of the city of Erie, Pennsylvania enforcing its ordinance against New Dancing against an outfit called PAPS AM. PAPS claimed by the time the court had granted certiori that it was no longer in that business and indeed its owner had retired so there was really no case here. But the court went ahead and founded a live controversy and decided the case. The law standard and found that the plaintiff in this case had not satisfied the burden of showing that the conduct was unlikely to recur. But the court went on and also said that the harm to the city, which was now unable to enforce its ordinance because of the state court ruling, the harm to the city prevented the case from becoming moot. This is very unusual. I haven't seen this before. And if this doctrine applies more generally, we may well see that mootness depends on which party prevails below and which party is appealing. So there's some flux in the law right here. We'll watch it develop. You know, when we began to plan this year's program, everybody agreed that this case of free versus average laboratories had to be on our list. What were we looking for in this case? Well, we had hoped that free would resolve a split in the circuits over the interpretation of section 1357, the Supplemental Jurisdiction Act. The fifth circuit and the seventh circuit have held that this new statute overrides the prior requirement derived from Zahn the International Paper that every plaintiff in a diversity suit or a class action individually satisfy the minimum jurisdictional amounts. Now, the third circuit and the tenth circuit had held that the statute didn't override it. They stuck to the Zahn rule. Unfortunately, the Supreme Court split four to four Justice O'Connor not participating, so we'll have to wait till the next case. And then we will. I'm sure it will come up again. Thanks very much, Susanna. Jordan, let's do two preemption cases. The first one involved Alexis Geier who crashed her 1987 Honda and sued in the District of Columbia claiming that Honda should have provided an airbag. Honda said no, there were Department of Transportation regulations in force that had provisioned for a variety of restrained systems. How did the court come out? The court found preemption here. There was an intricate parsing of the statute. There were federal regulations pursuant to the National Traffic and Motor Vehicle Safety Act that gave manufacturers the option of installing airbags. And this was a state no airbag suit alleging that there was a failure to install a passive restraint. The court holds that these kinds of state no airbag suits are preempt in it. And it's a very preemption friendly decision. The court actually uses the savings clause to support the conflict preemption noting that the savings clause does not absolutely protect state tort suits. Justice Stevens in Descent argues that the state is insufficiently attentive to the state toward interests and he chastised the court that is otherwise sympathetic to federalism claims for not being attentive here. He even quotes a habeas case and says this too is a case about federalism. But it's a very preemption friendly decision. Would you say that about the next case? This case involving Norfolk Southern Railway in a suit by Shanklin because of her husband's death at a railroad crossing? This is likewise a very preemption friendly decision. A federal statute which establishes standards for crossings at railroads and another federal statute that gives states highway funds in exchange for complying with those standards. Here Tennessee had warning signs but they didn't have gates or lights. But that was in compliance with the federal standard and the court here said that state to warn suits are preemptive because of the federal standing. I wanted to mention two other preemption cases but let me just ask is this a, this is clearly a trend towards preemption as far as you're concerned. I think it clearly is a trend. Is this sort of surprising in light of the court's support for states rights in other federalism contexts? I think it is a little bit surprising but I think that the states rights enthusiasts on the court are more concerned with reigning in federal power than in protecting state power. I think in some ways we may be moving from a theory of dual sovereignty to no sovereignty or some might even say judicial sovereignty. Which has been a comment several have made in the wake of this term. As I said there were two other preemption cases I might mention real briefly. There was this case in Washington state environmental regulations which the court decided unanimously fell in the face of the federal government's longstanding interest in admiralty regulation and then there was this case called Crosby versus National Foreign Trade Council where Massachusetts tried to bar businesses in the state from doing business with Burma and the court said no the supremacy clause trumps that and preempts the area. So the trend towards preemption, preemption was a big victor in this terms cases. Thanks Jordan. Susanna there was a lot of news coverage of the decision involving big tobacco Brown and Williamson and whether or not the FDA could regulate big tobacco put aside the tobacco part of this and just tell us a little bit about its implications for deference to agency rules generally that federal judges might be facing. I think the implication is that the court isn't exactly sure what direction it's going in as you know the Chevron doctrine requires courts to defer to agency interpretations of their enabling statute and the court purported to apply the Chevron doctrine in this case purported to defer to the agency regulations but then there wasn't much deference in evidence and I think this case together with a series of others suggests that the court's application of the Chevron doctrine is not consistent and doesn't offer much guidance to lower courts. Okay thanks very much. Let's turn to separation of powers we saw it in the case you just discussed in terms of agency legislative delegation to agency you saw it also in this case of Miller v. French which implicated the prison litigation reform act, the automatic state provision in the prison litigation reform act which basically stops an earlier federal court injunction if the institution files a motion against it some said this was Congress's inserting itself too deeply into the operation of the federal judicial power but the Supreme Court didn't agree. No the Supreme Court said that this did not interfere with the judicial power because the ongoing injunction was not a final judicial order therefore it was subject to whatever changes in the law Congress made. This is unlike the Plout case from a few years ago so this was not a final judgment indeed the district court was required to apply the changes in the underlying law which meant that the existing injunction was not valid and enforceable until and unless the district court judge made the required substantive findings under the PLRA. The PLRA requires. Well here is in the habeas case I think the court seems relatively untroubled by congressional control of the federal court adjudication of prisoners' rights and it's hard to know whether or not this reflects general skepticism on part of the court that there are any Article III limits here or whether or not it's a contextual case about prisoners' rights. Well that's an interesting comment. Thank you very much Jordan. Thank you Susanna. We'll be back in a moment with the final part of the program. The court has been redefining access to federal habeas relief as has congress particularly in the 1996 anti-terrorism and effective death penalty act or the AEDPA two cases this term interpreted key provisions of that statute and two others clarified other aspects of federal habeas law. Here to discuss these cases are Lori Levinson and Jordan Steiker. After reviewing the cases with professors Levinson and Steiker we'll turn to Judge Thomas Ellis for his views on how these cases will affect federal courts. Lori let's start with a definitional case. Slackley McDaniel presented three questions to the court. The one that's perhaps most important is the definition of the phrase second or successive petition which of course the statute bars. What did the court say in Slackley McDaniel about this and the other two issues? Well what the court said about that issue is that there had to have been a prior decision on the merits for the bar to kick in. So in this particular case where the defendant had filed a habeas corpus petition in federal court was sent back to state court because he had not exhausted and then going back to federal court who said wait a second you can't file a successive petition they said that's not a second or successive petition because there had not been a prior decision on the merits. But the court did two other housekeeping issues. One was the issue of what law applies for appeals from habeas corpus petitions and the court said you judge whether ADPA applies by when the date of the appeal was made not the initial petition was filed. And second of all what standard should be used for issuing the certificate of appeal ability and there the court reiterated that it has to be just a debatable claim of whether the state court was right on the constitutional error raised. Was the the definition of seconds or successive petition and we'll see this theme in other cases they seem to be ameliorating at least the harshest reading of the statute here. That's right I think a lot of people thought that that provision in the act was sort of a closed door for people coming into the federal court and here it says that's not true there had to have been a prior decision on the merits. This is an extension I guess of a case a couple years ago was it Martinez Villarreal? Absolutely. Thanks Lori. Jordan there were two habeas cases this term called Williams v. Taylor one was a unanimous this is Michael Williams v. Taylor the same warden and it involved another definitional question that the phrase failed to develop in the sense that federal judges are not to give evidentiary hearings in habeas cases if the petitioner failed to develop the issue below. Here they disagreed with the Virginia Supreme Court on what that phrase meant. This case had some very bizarre facts. The jury four person in this capital trial had been married to one of the prosecution's chief witnesses and the prosecutor had actually represented the jury four person in their divorce years before none of this came out on Vardir. The applicant didn't raise this in state court wasn't aware of it. The question is when he gets to federal habeas has he lost his opportunity because he failed to develop the facts in state court. The AEDPA prohibits an evidentiary here where an applicant has failed to do so. The question is whether failure implies fault and the court says it does that in order to have failed to develop the applicant must have not exercised due diligence. So now is this again mitigating what could be a much more harsh reading of the statute? Yes it is. Oh I think that's definitely right. Thanks Jordan. Lori this case was nine to nothing there was another nine to nothing case although Justice Breyer commented indeed on the complexity of habeas law this is the case of Edwards v. Carpenter and here the question is whether or not a procedurally defaulted ineffective assistance claim can still be used to excuse another procedurally defaulted claim. The court didn't have too much trouble with the question. No it didn't. What the court said is that it can only be used if you meet the cause and prejudice standard down for the failure to raise it in the state court. So on an ineffective assistance counsel claim you have to show cause and prejudice for that failure. And that's open and shut. I think that's it. It applies to all the circuits now. Thanks. Jordan the last case is a case that you told us about last term to watch for and I think most people agree it was the key habeas case this is again as Williams v. Taylor but the plaintiff's name here is Terry Williams and there were several majority opinions here what was the case about? The case was construing the major provision in the anti-terrorism effective death penalty act amended 2254D when is the state decision contrary to or involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court. Justice O'Connor writes for the majority on the statutory interpretation question and she really rejects what we regard as too extreme. One extreme position was that this provision merely codified pre-existing federal habeas law. The other position was that it mandated absolute deference to state determinations of federal law and Justice O'Connor rejects both of these and she emphasizes that there's a distinction between wrong state decisions and unreasonable state decisions but at the same time she rejects the four circuits expansive definition of reasonableness. She insists that for a state decision to be reasonable it must be objectively reasonable. Now there were as I said two majority decisions in the sense that Justice O'Connor wrote the decision on the definitional matter that you just discussed but then Justice Stevens wrote for the majority on the claim itself and this is a little unusual what claim the court granted to the petitioner. Yeah this was an ineffective assistance of counsel claim and it's the first time that the Supreme Court has granted relief on an ineffective assistance of counsel claim and in some sense it's the court signal that even after the AEDPA habeas remains alive and well. Coming on that a bit more what is the bottom line what is the state of habeas at the end of the October term 1999? Well the AEDPA clearly shuts off some routes to merits review of federal claims and this decision makes clear that even when you get merits review merits review is not the same as de novo review. At the same time I think the court is resisting the most onerous readings of the statute to preserve some meaningful review for federal habeas applicants. You know and I think that the lower courts are taking this decision very seriously already and we have a number of cases where the federal courts are saying we cannot abandon our responsibility to look independently on whether there was an appropriate application of the federal law we will do so by looking at the rationale for the state court decisions. I suppose that means it's no amazing point that what's going to happen is case law will develop about what objectively unreasonable means and that will be back up to the court before too long perhaps not next term. I think so. Mr. Jordan. I recently talked to Judge Thomas Ellis of the eastern district of Virginia about his views on the challenges these cases will present to federal district judges. Judge Ellis was appointed to the federal bench in 1987. Well Judge Ellis I appreciate your coming over to chat about these four habeas cases that the court decided this term. Thank you for asking me. It's a pleasure to be here. Let's start with what I think most people say is the most important of these cases. Terry Williams the tailor and look at Justice O'Connor's opinion that part of her opinion which gained a majority in which she defined the terms in 2254 D1 that it's an admonishment to a district habeas court not to grant the petition for habeas review unless the state decision is contrary to or an unreasonable application of supreme court precedent she defined contrary to went to the dictionary as the court often does gave an example as to what is a unreasonable application however of a supreme court precedent she basically said to the district court and the courts of appeals you're on your own it's a well known term but we're not going to define it so now that's your job to define what that phrase means as you receive habeas petitions how difficult is it going to be to define objectively unreasonable. Well of course time will tell but you certainly ask the important question about the decision and it's certainly correct to focus on Justice O'Connor's part two of her concurring opinion which as you pointed out gained a majority of the court because that's the opinion that elucidates the important part of the statute in issue there that statute I think it is well to remember precludes the grant of habeas relief unless the state court decision is contrary to established supreme court precedent or an unreasonable application of that precedent now she defined as you pointed out contrary to very well and she gave examples that will be helpful to district courts and she also gave separate and independent meaning to the unreasonable application portion of the statute and there she differed with justice Stevens and it made clear that the statute really has changed the scope of a federal habeas review and in doing so she said that an unreasonable application exists if it is objectively unreasonable that is if the state court decision is objectively unreasonable and that standard as you as your question suggested may prove to have some to be a challenge to district judges to apply this is a different standard that obtained I think in your circuit and rejection of the fourth circuit standard of the reasonable jurist and it's a rejection of any subjective standard anticipating supreme court precedence let's posit a situation in which a habeas court is faced with a state court decision for which there is no controlling supreme court precedent but quite a few of the courts of appeals have gone the other way now could a federal habeas judge looking at that say well that seems to bring the state court decision within the definition of objectively unreasonable well again you've asked an important question that goes to the heart of how this may play out objective unreasonable is not a matter of counting heads it's not a matter of deciding how many courts have gone one way as opposed to how many courts have gone the other way it seems clear that objective unreasonable goes to the rationale for the reasons given for the state decision and district judges will have to examine the reasons a rationale for the state court decision let's turn from procedure and talk turn from substance and talk a bit about procedure the case of slack v mcdaniel slack a nevada prisoner who sought habeas review in the district court in nevada petition was dismissed as this procedure he wasn't dismissed on the merits slack had to go back and exhaust the state remedies and he came back to federal court and then the petition was dismissed as a second or successive petition supreme court disagreed it said the court should have treated this subsequent petition as a first petition now a district judge is going to have a hard time defining what is a second or successive petition within the habeas context is that term is used in the long run I think not some history might help give us some perspective here in an earlier regime there were no bars against second or successive petitions and petitioners frequently filed numerous petitions then states and indeed congress passed the bar against second or successive petitions and court struggled with the application of that now we have arguably the third regime in which it is clear that the bars against second or successive petitions applies only to the merits dismissals not to procedural dismissals so we've established these sorts of procedural dismissals don't create the second or successive bar do you see other problems that district judges may face in the wake of slack the mcdaniel well it's not clear it is worth noting that the slack opinion uses a quote reasonable jurist close quote standard and one wonders how that will square with the objective unreasonableness of justice o'connor in the williams the terry williams case and of course it's I think worth some reflection as to how some of the state bars against second or successive petitions will operate in this context as well there's also the specter could you comment on briefly that novada raised before the court that if the court decide to dismiss the case as it turns out it did it's an invitation for vexatious litigation as the state put it for petitioners to come back with one mixed petition after another being dismissed on procedural grounds and then back comes another mixed petition with some that claims exhausted some not is this going to be a tough problem for district judges again I think not justice kennedy I think disposed of this objection noting that courts under rule 41 have the power to dismiss cases that don't comply with court orders but generally I think district judges will go ahead and treat or dispose of resolve the exhausted claims or the claims that are appropriately before it and dismiss the others inviting the petitioner if he or she wishes to refile those in a new suit as a new law suit yes we talked earlier about williams v. taylor terry williams v. taylor let's talk about michael williams v. taylor which has coincidentally also came from the eastern district but dealt with a very different issue and this case was nine to nothing here the court was called upon to define the phrase fail to develop in the statutory admonition to district judges not to grant evidentiary hearings on points that the petitioner failed to develop in the state court proceeding here among other things michael williams was not aware that one of the jurors was a sheriff and so he raised this bias juror claim and the court agreed that he was not in a position to develop that at trial so the fail to develop is a fault standard not a no fault standard is this going to invite more petitions for evidentiary hearings and habeas claims well we shall have to wait and see but I think not of course in the fourth circuit because the rule in the michael williams case was already the rule in the district and in the circuit let's turn on the same general theme to the last case in this quartet edwards visus carpenter which came from the sixth circuit here the court unanimous as to the disposition but seven to two as to the reasoning said that a petitioner bringing a defaulted ineffective assistance claim may not and also as a defaulted other habeas claim can't use the effective assistance claim to excuse the other claim the other default unless he independently shows the cause and prejudice standard has been met with respect to the defaulted and effective assistance claim how's that going to play out in the district courts well I think it depends on the circuit in the fourth circuit that has long been the established rule and so it will not make much difference in the fourth circuit but in other circuits there will be considerable difference because in order to use an ineffective assistance claim the petitioner will have to show cause and prejudice and this in certain circumstances may be difficult to do ok well judge thanks very much for coming by well thank you very much for having me that concludes the third and final part of this program on the 1999-2000 supreme court term many thanks to the faculty for their summary and analysis and thanks to you for joining us as I did at the outset I again ask you to complete the evaluation form in your materials and fax it to us at the number on the form you want your candid view on the value of this program to you good day