13 December 2004

Extremism in the Defense of Federalism…

appears to be a significant vice, because it may well lead to an execution.

In a little-noticed concurring opinion today—little-noticed because it concurs in denial of certiorari—Justice Stevens remarks:

I am now satisfied that the Texas court’s determination was independently based on a determination of state law, and therefore that we cannot grant petitioner his requested relief. That result is regrettable because it seems plain that Kunkle’s sentence was imposed in violation of the Constitution. In this proceeding, however, he has invoked a state remedy that, as a matter of state law, is not available to him. Accordingly, I concur in the Court’s decision.

Kunkle v. Texas, No. 04–7271 (Dec. 13, 2004) (Stevens, J., concurring in denial of cert.), slip op. at 2 (citations omitted).

In other words, this is yet again another highly specific, procedurally bound decision from Justice Stevens. That is not entirely a bad thing; in this instance, though, the consistency with his other recent opinions—such as his excoriation of the lawyering below in Cheney—demonstrates that most weapons have two edges. Not only the emphasis on procedure—but the emphasis on formal Federalism.

All may not be lost for Mr Kunkle; it appears from the opinion that this is in postconviction hearings, not habeas hearings. If so, he has the (dubious) opportunity to try a habeas attack on his sentence. This particular matter, though, will become much more interesting once the courts below can thoroughly reflect on the Supreme Court's treatment of the Fifth Circuit's and Texas Court of Criminal Appeals' collective death-penalty results at the end of this term.