Foster v. Chatman - Oral Argument - November 02, 2015

Foster v. Chatman

Media for Foster v. Chatman

Audio Transcription for Opinion Announcement - May 23, 2016 in Foster v. Chatman

Audio Transcription for Oral Argument - November 02, 2015 in Foster v. Chatman

John G. Roberts, Jr.:

We'll hear argument first this morning in Case 14-8349, Foster v. Chatman. Mr. Bright.

Stephen B. Bright:

Mr. Chief Justice, and may it please the Court: The prosecutors in this case came to court on the morning of jury selection determined to strike all the black prospective jurors.

John G. Roberts, Jr.:

Mr. Bright, maybe you could address first the -- the question we raised on Friday with respect to which court certiorari should be directed to.

Stephen B. Bright:

Yes, Your Honor. We filed this petition originally certiorari to the Supreme Court of Georgia.

And of course this Court in Sears v. Upton had issued certiorari -- this is in 2010 -- to the Supreme Court of Georgia in a similar situation. It appears to us, from looking at this over the weekend, that R.J. Reynolds Tobacco Company v. Durham County, which the Court has decided in eight -- in 1986, the Court said that, unless there was positive assurance that the decision was not a ruling on the merits, then the writ went to the State supreme court. And the Georgia court, while it has rules and statutes and its own opinions that are not totally in harmony with one another, the rule, nonetheless, is that a certificate of probable cause, which is what was denied in this case, is to be granted if there is arguable merit to the case.

John G. Roberts, Jr.:

Do you think that affects the scope of our review? In other words, are we addressing just whether there's arguable merit to the claim or are we addressing the claim on its own merits?

Stephen B. Bright:

Well, I -- I think what this Court has done in -- in all these cases is apply Yist v. Nunnemaker to look through to the last reasoned decision, and that would be the decision of the habeas corpus court.

In Georgia, typically the habeas court rules, an application is made for certificate of probable cause to the Georgia Supreme Court, and that is often denied summarily.

It is denied summarily as it was in this case.

It was denied.

Antonin Scalia:

I really don't understand that.

You -- you say we would be reversing the Georgia Supreme Court, not the -- not the habeas court, right? And -- and all that the Georgia Supreme Court held is that there -- there -- is that there was no arguable basis for -- for its accepting review. So if we reverse that decision, we -- we tell the Georgia Supreme Court, you're wrong; there is an arguable basis for your accepting review.

So we ought to remand to that court, requiring them to accept review, it would seem to me. How can we reverse them on -- on an issue they -- they never considered?

Stephen B. Bright:

Well, that's what happened in R.J. Reynolds.

I mean, there you had almost an identical situation where you had an intermediate appellate court that had ruled, and then you had the North Carolina Supreme Court denied review.

And the question was, do you issue the writ to the intermediate appellate court or to the North Carolina Supreme Court? And -- and this Court decided, and Justice Blackman, writing for the court, said, "We want to give practitioners" -- "We want to end the confusion about this." And so it goes to the State supreme court. There is no difference in our situation here and the situation that R.J. Reynolds --

Elena Kagan:

But -- but you're saying in that case or in other cases? And if so, which other cases that, in that situation, we, nonetheless, addressed the reasoning of the intermediate court? Is that what you're saying?

Stephen B. Bright:

You -- you did in Sears v. Upton, a case out of Georgia, 561 U.S. 945 in 2010. That was certiorari to the Supreme Court of Georgia, but it came up on exactly the same posture of our -- our case.

Anthony M. Kennedy:

Is there an argument that the petition for certiorari could go to the trial court? I mean, our statute says that it goes to the highest court in which review could have -- could have been had, I think is the -- the statutory phrase, in which sounds like the Georgia Supreme Court. On the other hand, as Justice Scalia said, they haven't really directed their attention to the issues before us. I -- I -- I'm not sure to me that it's an option to -- to go to the superior -- to the Georgia trial court.

Stephen B. Bright:

Well, let --

Anthony M. Kennedy:

Or -- or is that incorrect?

Stephen B. Bright:

Well, what this Court has said, both in the R.J. Reynolds case and then that was followed in Grady v. North Carolina last year -- 2015 case, this year, in which, once again, there was an intermediate court decision denied by the -- the North Carolina Supreme Court. I mean, I can remember all the way back to 1960.

There was Thompson v. Louisville, where certiorari was to the police court in Louisville, Kentucky, because no court in Kentucky could take the case because the fine was less than $20. But I think these cases, much more recent, decided by the Court 1986 and this year --

Ruth Bader Ginsburg:

You're putting together two rules that you say we've established.

One is Justice Blackman said, to end the confusion, the petition should be addressed to the Supreme Court. And then you said, we have cases.

Look through cases.

If --

Stephen B. Bright:

Right.

Ruth Bader Ginsburg:

-- the Supreme Court has said just "denied," nothing more than "denied," we look back to the last reasoned decision. Those are both decisions of this Court, and that's what you're relying on.

Stephen B. Bright:

Well, and -- and they're not mutually exclusive.