Yesterday, the Supreme Court issued a per curiam opinion in a capital habeas case, Bobby v. Van Hook. The opinion is available at the end of the Court's order list from yesterday.
What's truly incredible about this opinion is Alito's concurrence. I'll get to that in a second.
The main opinion is straightforward. The Supreme Court reversed a habeas grant out of the Sixth Circuit on the issue of ineffective assistance of counsel at sentencing. The Sixth Circuit had concluded that under the ABA standards or professional conduct, the attorney's representation had been deficient. The Supreme Court held that it was wrong to use the ABA standards as "inexorable commands" in determining what is and what is not reasonable. Rather, the ABA standards -- more specifically those that were in existence at the time of the attorney's performance -- should only be used as "guides" in determining whether the attorney's actions were unreasonable. The Court concluded that the attorney's actions in Bobby did not run counter to the ABA standards in place at the time and were not otherwise ineffective. Notably, the petition had been filed prior to the AEDPA, so the Court reviewed the claim de novo.
As mentioned above, the incredible part of the opinion is Alito's brief concurring opinion. Alito stated that he was joining the opinion on his understanding that the ABA's guidelines for the performance of criminal attorneys does not have "special relevance in determining whether an attorney's performance meets the standard required by the Sixth Amendment." He goes on to state that the ABA is a private entity and not all lawyers are members, so it should not be considered representative of "the views of the American bar as a whole." He makes the relevant and non-debatable point that it is up to the courts to determine whether an attorney has been ineffective. He then concludes, "I see no reason why the ABA Guidelines should be given a privileged position in making that determination."
I find this concurrence a little breathtaking. To me, it feels like nothing more than an unjustified attack on the ABA. It has been a right-wing shibboleth for years that the ABA is a left-wing political organization (just do a search for left-wing and ABA and you'll see what I mean). In fact, the Bush administration was the first administration in 50 years to refuse to consult with the ABA on judicial nominations. That says pretty much everything. Alito's concurrence is just an extension of this same right-wing mythology. It seems as if this attack on the ABA may have been too blatantly political for even Thomas and Scalia to join.
The irony is that the ABA gave Alito it's highest rating during his confirmation battle and many stories credited the recommendation as pushing the nomination over the top. Speaking of biting the hand that feeds. I have also read some articles that were written during the confirmation battle that expressed surprise that the left-wing ABA would give a right-wing judge its highest qualifications. Kind of speaks for itself doesn't it. I guess it's hard when a myth gets destroyed right in front of your eyes.
Sometimes, the political dialogue in this country is completely out of whack.
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