January 20, 2010

A Way Out (Or More Likely, A Good Argument in Dissent) in Citizens United Telegraphed in Today's Opinion in Wood v. Allen?

Regular readers of my blog are probably tired of hearing me put forth the argument that the Court in Citizens United should not reach the question whether to overrule the Austin case and allow for unlimited corporate spending on elections, because the question was not fairly presented in the jurisdictional statement. (The jurisdictional statement is the equivalent to a cert. petition in cases coming to the Court on Appeal rather than on a writ of certiorari).

So I saw with interest a discussion in this morning's Court decision in Wood v. Allen, involving habeas questions. Here's the relevant discussion at 12-13:

    Wood also argues that the state-court decision involved an unreasonable application of Strickland under s 2254(d)(1) because counsel failed to make a reasonable investigation of Wood's mental deficiencies before deciding not to pursue or present such evidence. Without a reasonable investigation, Wood contends, these decisions were an unreasonable exercise of professional judgment and constituted deficient performance under Strickland. We agree with the State, however, that this argument is not "fairly included" in the questions presented under this Court's Rule 14.1(a). Whether the state court reasonably determined that there was a strategic decision unders2254(d)(2) is a different question from whether the strategic decision itself was a reasonable exercise of professional judgment under Strickland or whether the application of Strickland was reasonable under s 2254(d)(1). Cf. Rice, 546 U. S., at 342 ("The question whether a state court errs in determining the facts is a different question from whether it errs in applying the law"). These latter two questions may be "related to the one petitione[r] presented, and perhaps complementary to the one petitione[r] presented," but they are "not fairly included therein." Yee v. Escondido, 503 U. S. 519, 537 (1992) (internal quotation marks omitted).

    It is true that Wood's petition discussed the Eleventh Circuit's misapplication of a 2254(d)(1) and Strickland. Pet. for Cert. 22-27. But "the fact that [petitioner] discussed this issue in the text of [his] petition for certiorari does not bring it before us. Rule 14.1(a) requires that a subsidiary question be fairly included in the question presented for our review." Izumi Seimitsu Kogyo Kabu-shiki Kaisha v. U. S. Philips Corp., 510 U. S. 27, 31, n. 5 (1993) (per curiam). We therefore do not address Wood's argument that the state court unreasonably applied Strickland in rejecting his ineffective-assistance-of-counsel claim on the merits.

This would be a nice "statesmanlike" citation by Chief Justice Roberts in a controlling Citizens United opinion refusing to reach the question of overruling Austin. Of course, if the Chief was going to go this route, it would have been apparent before the Court ordered the in-your-face reargument on the question of the constitutionality of Austin.

So unless the Chief got cold feet, a citation to this part of Wood v. Allen could well form part of Justice Sotomayor's dissent (or some other Justice's dissent) from any majority decision to overrule Austin.

Maybe we'll see on Monday. Then again, maybe we won't.

Posted by Rick Hasen at January 20, 2010 07:54 AM