Lawrence v. Florida - Oral Argument - October 31, 2006

Lawrence v. Florida

Media for Lawrence v. Florida

Audio Transcription for Opinion Announcement - February 20, 2007 in Lawrence v. Florida

Audio Transcription for Oral Argument - October 31, 2006 in Lawrence v. Florida

John G. Roberts, Jr.:

We'll hear arguments next in Lawrence v. Florida.

Ms. Bonner.

Mary Catherine Bonner:

Mr. Chief Justice, and may it please the Court:

Mr. Lawrence in this case made an application for relief in the state courts of Florida, that unfortunately was denied to him, the relief that he sought.

Consequently, he came here to the United States Supreme Court on a certiorari review and the certiorari, although it was denied, he did present to this Court an issue on which it could have acted had it chosen to act.

It is well within the power under 28 U.S.C. 2104 for this Court to modify, vacate, remand.

In other words, this Court can and could have affected that judgment.

Our position is that this... there is a distinction between the, quote, 2104 and the original writ of certiorari which would lie in this Court in some instances.

When one uses the appeal, one is not making a new application.

We respectfully suggest that the utilization of the emphasis in 2244 should be on application and what was before this Court on petition for certiorari was the application, the document, the issues, which had been presented below in the Florida courts and this Court was sitting to determine whether it would--

John G. Roberts, Jr.:

It would presumably, though, be limited in some ways.

For example, if the application for state post-conviction relief raised arguments under state law, those would not be a proper subject of a petition for certiorari.

Mary Catherine Bonner:

--Absolutely not, Your Honor.

And the issues which were raised were the same ones that were raised in the state court and were of constitutional dimension that Mr. Lawrence raised here.

But our point is if the emphasis is on the application, then until the finality of action on the application--

Antonin Scalia:

You're saying the application is the application... the petition for certiorari is the application?

Mary Catherine Bonner:

--No, sir.

I'm saying the application under 3850 in Florida state trial courts, which then goes to the Florida State Supreme Court, is the application upon which this Court would be acting.

If it were not acting on that, what would it be acting on?

Antonin Scalia:

Well, we can't act on it unless, unless it's final.

We, we need final action by the state court, don't we?

Mary Catherine Bonner:

Well, except--

Antonin Scalia:

How can it be final action and yet still be pending?

Mary Catherine Bonner:

--To utilize the word "final" there would be... we can use the word "final" after a jury determination and that in one effect, in one sense, is final.

And when Florida is done it's final in some sense.

But it's not final under 2104 because this Court can modify it, can remand it.

Antonin Scalia:

It's final as far as the application for state review is concerned.

Mary Catherine Bonner:

There... it is the--

Antonin Scalia:

Which is the text that we're dealing with here.

Mary Catherine Bonner: