By Eva M. Rodriquez
The Recorder
WASHINGTON -- It has been billed as high noon for death row appeals at the high court, a showdown pitting a Georgia capital crime convict against a newly enacted law that would drastically curtail his ability to appeal his case to the federal courts.
But on June 3, when the U.S. Supreme Court is scheduled to hear Ellis Wayne Felker v. Tony Turpin, Warden, little if any of the court's time is likely to be taken up with questions about whether Felker's 1983 murder conviction should stand, or about the controversial new habeas corpus reforms enacted by Congress earlier this spring.
Instead, the justices will likely seize on Felker's case to grapple with a less flashy, but arguably more profound, constitutional face-off over the power of Congress to meddle with the court's turf.
"This may be a big case, but not for the reasons that most people think it will be," says Larry Yackle, a professor at Boston University School of Law, who has been retained as a consultant for Felker. "[The case] may say something fundamental about what Congress can do about the jurisdiction of the Supreme Court."
On May 3, the court agreed to hear argument on whether the Anti-Terrorism and Effective Death Penalty Act of 1996 unconstitutionally infringes on the Supreme Court's own power, by drastically cutting back on inmates' ability to reach out to the high court in successive habeas petitions.
The act still allows prisoners to petition the high court directly during their first round of appeals. But during subsequent bids for relief, prisoners must get the approval of a three-judge federal appeals panel before they can again make their case to a trial court. The panel's decisions, under the new system, are not appealable to the Supreme Court.
Courts Power Gutted?
According to a May 17 brief filed by Felker's lawyers, the new reforms in some respects gut the Supreme Court's power as the ultimate arbiter of justice.
"Whatever the ultimate scope of congressional power to regulate this court's appellate jurisdiction," the brief argues, "we submit that when an individual suffers a severe deprivation of liberty and asserts a claim that he is being confined pursuant to rulings and practices that violate the Constitution of the United States, such a claim cannot be wholly withdrawn from the cognizance of this court."
But the solicitor general, who has weighed in on the side of the state, argues that there is absolutely nothing wrong with the reforms that Congress passed and the president signed into law.
"[T]he consistent recognition by this court and Congress that principles of finality are applicable to habeas litigation demonstrates that the act's further refinement of those principles, in the context of this case, does not violate the [Constitution]," the May 17 brief noted.
Most court watchers and legal scholars assumed that the conservative justices who rushed to hear the case, and who put it on an unusually fast track, also would find the habeas reforms inoffensive. After all, Chief Justice William Rehnquist and his conservative colleagues have often ruled in favor of streamlining the habeas process.
But that calculation may be too simple. Although only the four most liberal members of the court dissented from the grant of certiorari, two conservative justices -- Sandra Day O'Connor and Anthony Kennedy -- might have had their own reasons for hearing the case. Some observers speculate that O'Connor and Kennedy may not be all that receptive to Congress' recent move to scale back further what can sometimes be a prisoner's last, best chance for justice.
"After all of the Supreme Court's cutbacks on habeas in the past few years, O'Connor and Kennedy have shown some tendency to say, 'Far enough,'" says Thomas Rowe Jr., a professor at Duke University School of Law.
And even such staunch conservatives as Justice Antonin Scalia who have been impatient with the seemingly endless and arguably frivolous appeals of death row inmates, might have trouble with Congress' expansive move and its effect on the independence of the federal courts.
"You can be deeply conservative and a serious believer in separation of powers and be quite hostile to Congress' attempts to invade the province of Article III," says Laurence Tribe, a professor at Harvard Law School. "It would not shock me if justices like Kennedy and O'Connor, and maybe even Scalia, were in fact [concerned that this case] presents an impermissible intrusion on Article III."
Adds Tribe: "It might be surprising, but not shocking."
If the conservative coalition on the court concludes that the act does pass constitutional muster, it could reinvigorate critics of judicial activism who want to see the federal courts stripped of any power over issues like school busing and federal court intervention in state prisons.
"If the Supreme Court even opens the door a little, there's going to be a lot of people who think this is a great way to cut back on the constitutional authority of the federal courts over other issues," says Richard Samp, chief counsel for the conservative Washington Legal Foundation.
Samp says he is unaware of any group currently preparing to launch such a challenge.
Amici Weigh In
But they are watching. Despite the expedited schedule, a number of conservative, victims' rights, and law enforcement groups have filed amicus curiae briefs in support of the act. The groups include: the Washington Legal Foundation, joined by the Clarendon Foundation and the Florida-based Justice for Surviving Victims, in a brief written by University of Utah law professor Paul Cassell; the National District Attorneys Association; and the Criminal Justice Legal Foundation.
Sen. Orrin Hatch, R-Utah, a key player in the push for habeas reform, was joined by 50 other federal lawmakers in filing a brief in support of the reforms.
The National Office of the American Civil Liberties Union was considering filing a brief on Felker's behalf, according to a lawyer familiar with the defense.
Considering the potential importance of the case, the number of parties filing amicus briefs is relatively small.
That could be attributable to the expedited schedule for the case, which, according to Tribe, has kept a few Supreme Court regulars, including himself, on the sidelines.
Tribe, a liberal scholar, says that he was approached by one of the parties in the case -- he won't say which -- about joining as counsel, but declined to participate because he wouldn't have had time to prepare adequately for the argument.
"One byproduct [of the way the justices have chosen to proceed with this case] is depriving itself on all sides of the issue of the opportunity to get the best possible briefing on the arguments," says Tribe.
Stephen Bayliss, a lawyer with the Georgia Resource Center, a nonprofit group that aids state death row inmates, is the attorney of record for Felker. Bayliss declines to comment on the case or on who will handle oral argument for Felker.
Susan Boleyn, a senior assistant attorney general for Georgia, will argue the case for the state. Boleyn also declines comment.
Solicitor General Drew Days III will likely argue on behalf of the state if the court -- as it is expected to do -- grants the office time during oral argument.
From the beginning, the court dealt with the case at breakneck speed. Also from the beginning, it seemed clear that the justices were more intent on determining how the new habeas reforms would affect the court than on how they would impact Felker or others like him.
Felker filed his petition with the court May 2, the date on which he was to be executed by the state of Georgia. He filed the petition with Justice Kennedy, the justice for the Eleventh Circuit U.S. Court of Appeals, which had jurisdiction over Felker's case.
In his petition, Felker raised several issues that went to the heart of whether he was fairly convicted in 1983 for the murder of a Georgia woman.
Among other things, Felker argued that a state-performed autopsy was bungled, and that the original time of death assigned by the state's coroner made it impossible for Felker to have committed the crime. Felker also challenged as unconstitutional the instructions given to the jury that convicted him.
In one vaguely worded question, Felker also raised the possibility that the new habeas reforms may "unconstitutionally tie the hands of the federal courts with respect to the exercise of jurisdiction in habeas corpus actions, violating the requirement of separation of powers and encroaching on Article III power of federal judges."
On May 3, just 24 hours after receiving Felker's petition, the court voted to hear the case.
The four more liberal members of the court -- Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer -- issued an unusual dissent to the grant of certiorari, calling the rush to hear the case an "unnecessary" and "profoundly unwise" move.
The justices who wanted to hear the case disregarded Felker's claims of innocence, and instead focused on the one question regarding the constitutionality of the act's effect on jurisdiction.
Yackle, one of Felker's lawyers, says he is unconcerned about the way the justices have approached the case. From Yackle's perspective, it is understandable that the justices wanted to deal with jurisdictional issues before tackling broader matters that might arise under the act.
"The court is taking first things first," Yackle says. "It would surprise me very much should the justices get involved in [Felker's other claims] at all."
The justices also had no intention of dealing with anything other than their own turf. The court plucked that one fuzzy notion about the act's constitutionality raised by Felker and fashioned three precise questions of its own -- questions that dealt exclusively with the jurisdiction of the Supreme Court, to the exclusion of any of the lower federal courts.
While the act's restrictions on subsequent writs of habeas may seem severe, they may ultimately be constitutional, according to legal scholars who have studied the question.
The case law supporting Congress' power to determine jurisdiction of federal courts goes back more than 150 years. More recently, legal scholars point to the 1973 case of Palmore v. United States, in which the Supreme Court affirmed the notion that Congress has the power to invest the lower federal courts "with jurisdiction, either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good."
Says Michael Perlin, a professor at New York Law School: "Congress has the right to limit jurisdiction, even if we citizens are very galled."
But how much power Congress has to limit the jurisdiction of the highest court is still up for debate.
Yackle cites a line of cases dating back to 1869 in which the Supreme Court has held that even when the court's jurisdiction is trimmed back, litigants may pursue other routes to reach the high court.
And during the 1970s and 1980s, various bills eliminating federal court jurisdiction over such hot-button issues as abortion and school desegregation were batted around, but none were ever passed into law.
According to legal scholars, this may very well be the first time in recent years that the Supreme Court will squarely address the issue of whether Congress can all but eliminate the Supreme Court's ability to review a particular issue.
"This question the court hasn't dealt with in over 100 years," says Yackle.
Adds Tribe: "This is probably the most obvious and direct attempt to identify a particular area of the law and to say, 'The buck stops here.'"
--Eva M. Rodriguez is a news editor at Legal Times, a Washington-based weekly affiliated with The Recorder.
(The Recorder is an affiliate publication of Court TV.)
Copyright 1996, American Lawyer Media.
