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‘Court of last resort,’ but not always the last word

WASHINGTON — Nothing about the Supreme Court — not its magnificent building atop Capitol Hill nor its very title — suggests that its word is anything other than final. Yet federal appellate judges and even state court judges sometimes find ways to insist on an outcome the Supreme Court has rejected.

Just last week, the justices rebuked judges on the federal appeals court in San Francisco in the tragic case of a Los Angeles-area grandmother who was convicted of shaking her 7-week-old grandson to death. The appeals court overturned the conviction three times and twice, the justices ordered the appellate judges to try again. The third time around, the justices ended the case, pointedly upholding the conviction.

“Each time, the panel persisted in its course, reinstating its judgment without seriously confronting the significance of the cases called to its attention,” the high court said in an unsigned opinion. “Its refusal to do so necessitates this court’s action today.”

But the nation’s court of last resort does not always get the last word.

The appeals court in Washington where four Supreme Court justices trained, the Oregon Supreme Court, and occasionally even the San Francisco-based federal appeals court given its come-uppance last week, have in recent years won battles with the justices. The lower court judges have managed to limit the rights of terrorism suspects detained at Guantanamo, uphold awards of large punitive damages against companies and rule in favor of criminal defendants, despite the Supreme Court’s disapproval.

The efforts bring complaints from lawyers on the losing end of these cases and from some scholars that the judges are “thumbing their noses” at the Supreme Court, although those complaints usually are expressed in the more polite legalese of the courtroom.

That’s why an appeal asking the high court to throw out a punitive damages award calls an Oregon Supreme Court decision upholding the award “yet another attempt by that court to thwart federal due process protections.”

Unusually direct

Some federal appeals court judges in the nation’s capital have been unusually direct in criticizing Supreme Court rulings that gave detainees at the U.S. naval base at Guantanamo Bay, Cuba, the right to contest their imprisonment in federal court. And the appeals court has so far blunted the impact of the high court’s decisions by limiting the detainees’ ability to challenge the government’s evidence justifying their continued imprisonment.

Circuit Judge A. Raymond Randolph, reversed three times by the Supreme Court in detainee cases, has said the court was “profoundly mistaken” and made a “mess” of the situation.

Stephen Vladeck, an American University law professor who has represented Guantanamo detainees, said there has been nothing subtle about the appeals court’s rulings and some comments, especially from Randolph and his circuit colleague Judge Laurence Silberman.

“One does not have to look hard to see fairly outright challenges to the Supreme Court’s authority, which to me only makes it that much more surprising that the Supreme Court has seen fit to do nothing,” Vladeck said.

The justices have so far declined to hear appeals arguing that the appeals court just blocks away at the foot of Capitol Hill has undermined the high court’s guarantee, in 2008, of limited constitutional rights for Guantanamo detainees.

In the area of punitive damages, the Oregon Supreme Court upheld an $80 million award from Phillip Morris USA to a smoker’s widow three times. Twice, the justices threw out the judgment.

On the third go-round in Washington, the justices seemed open to the idea advanced by the cigarette maker’s lawyer that they were being played.

“We’re here today because the Oregon court failed to follow this court’s decision,” Stephen Shapiro, told the justices.

“How do we guard against making constitutional decisions which are simply going to be nullified by some clever device?” Justice David Souter asked. Souter has since retired.

But Robert Peck, Mayola Williams’ lawyer, sought to persuade the court that the Oregon court did not act in bad faith. “There was no sandbagging here,” Peck said.

In the end, the high court dismissed the case without deciding anything, an outcome that left Williams’ award in place. Former Oregon Supreme Court Justice W. Michael Gillette, the author of the Williams opinion, said he was heartened both by the outcome and by Shapiro’s comment at another point in the argument that he was not accusing the Oregon court of acting in bad faith.

“I did not want to be remembered as a judge who was thumbing his nose” at the Supreme Court, said Gillette, now a lawyer in private practice in Portland, Ore.

But the Farmers Insurance Co. of Oregon is resurrecting the argument over the Oregon court’s motivations in a new appeal. The company is asking the justices to throw out an $8 million punitive damages judgment, on top of $900,000 in compensatory damages, that the Oregon court upheld in July. Farmers Insurance contends that prior Supreme Court rulings only allow punitive damages to roughly equal compensatory damages when the behavior at issue is not reprehensible.

Theodore Boutrous Jr., representing Farmers Insurance, wrote that the state court sided with the plaintiffs “by inventing yet another procedural trap” to defy the justices. Boutrous, Wal-Mart’s lawyer in the company’s successful effort last term to end a nationwide class action discrimination lawsuit, said the Oregon court’s decision in the Farmers Insurance case was similar to the state court’s “novel and patently unreasonable” ruling to uphold the award against Phillip Morris.

The Supreme Court has yet to consider the Farmers Insurance appeal. But Peck, who is representing the people who sued the insurer, said the attack on state courts is a familiar refrain among lawyers defending companies in these suits, “There seems to be sort of this theme that I’m seeing in a lot of petitions, portraying the state courts as rogue courts that don’t obey due process, seeking to stick it to defendants. The facts just don’t bear that out,” he said.

Getting used to it

Judges on the 9th U.S. Circuit Court of Appeals, the San Francisco-based court involved in the shaken baby case, have to some extent grown accustomed to Supreme Court criticism.

Last term alone, the high court unanimously reversed Judge Stephen Reinhardt of the 9th Circuit three times. But Reinhardt contends that it is the high court that is changing the rules, especially in the second round of appeals that criminal defendants are allowed in order to pursue alleged violations of their constitutional rights.

“The explanation is the Supreme Court keeps narrowing people’s rights under habeas,” the formal term for the second round of appeals, Reinhardt said in an interview. “The court goes beyond where it’s been before and reverses one of our cases. It goes and issues a new rule and says we’re wrong, and then we don’t do that again. But when we did it, we were right. It’s not our job to anticipate their changes in the law.”

But critics of the 9th Circuit say its judges at times defy the high court. They cite a saying, widely credited to Reinhardt, that no matter how often the court undoes his work, or that of his colleagues, the justices can’t reverse them all.

The judge said he doesn’t remember ever saying those words, but that if he did, he said it “somewhat humorously, not as indication of how you decide cases.”

Still, looking back over 30 years on the federal bench, Reinhardt said he thinks “there were one or two cases where the panel must have worn them out.”